Trade Disputes
Cases
Nolan Transport (Oaklands) Ltd. v. Halligan
[1999] 1 I.R.128
O’Flaherty J.
I agree with the judgment of Murphy J. on the two issues in the case:-
(1) Whether or not a trade dispute existed?
(2) Whether or not the union was entitled to authorise strike action having regard to the manner in which the “secret ballot” was conducted and the manner in which those voting actually voted?
The evidence is clear that there was a trade dispute. The men, at the very least, had good grounds for thinking themselves dismissed. I am afraid that both employer and striking employees conducted themselves in a manner best calculated to bring about the maximum degree of misunderstanding as to their respective positions. Any form of conciliation, arbitration, or dispute resolution was zealously avoided.
The finding that the union was conducting affairs with the sole purpose or motive to get a foothold in the company and unionise the whole workforce cannot stand. If that had been the union’s motive, it went about it in the worst way possible.
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An unfortunate aspect of the present case is that the employer appears to have approached it on the basis that either all the workers joined the trade union or none of them joined and that the decision was to be made by the majority of the workers. But the constitutional right of each worker to join or not to join a trade union is well established in Irish law. No worker can be forced to join a trade union against his will and likewise no worker can be denied his right to join a trade union which is prepared to accept him. These are matters of constitutional right and are not capable of being resolved by a majority vote unless all the workers have freely agreed to have the matter so resolved.
The State, representing the rest of us ordinary citizens and taxpayers, has a very keen interest in seeing to the harmonisation of industrial relations. We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law in all its refinements to work out a better way. At this stage of our development, this country should be an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily. That is good for everyone; it will lead to more employment and increased trade.
The whole point of the Industrial Relations Act, 1990, was to streamline this area of the law, to copper-fasten the special privileges of trade unions in many respects; to give them additional rights and, indeed, it is the whole point of s. 14 of the Act which provides for the necessity of having in the rules of a trade union a requirement to hold a secret ballot before a strike is called. This is primarily designed to strengthen the role of union management against the actions of maverick members, and to reverse the construction placed on the then existing law by the decision of this Court in Goulding Chemicals Ltd. v. Bolger [1977] I.R.211.
This is clear from a wording of sub-s. (3) which provides:-
“The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and onno other person.” (emphasis added)
Section 13 stands unaffected by whether there has or has not been a ballot. It provides:-
“(1) An action against a trade union, whether of workers or employers, or its trustees or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.
(2) In an action against any trade union or person referred to in subsection (1) in respect of any tortious act alleged or found to have been committed by or on behalf of a trade union it shall be a defence that the act was done in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.”
Counsel for the defendants went too far, however, in saying that we should have no regard to a breach of the “secret ballot” provisions as far as this litigation is concerned. They submitted that the requirement of the legislation was that there should be provision in the union rules for the holding of secret ballots. If the rules did not so provide, then the sanction was that the union would be deprived of its negotiating license. While the necessity for secret ballots is not a direct requirement of the legislation, for my part I do not regard this as an important distinction. The purpose of this part of the legislation is clear: it is to strengthen the hand of union management by having a proper secret ballot before a strike is called. The ballot in this case, whether it was rigged or not, was certainly something of a shambles. The learned trial judge has detailed the various irregularities that occurred. The big fault with the whole operation, in my belief, is that there was not an impartial person in charge who would have made sure that a proper ballot was held with a due sense of decorum and correctness.
If there is one lesson that can be learned from this litigation it is surely that the requirements for having a proper secret ballot should always be observed. The experience of the integrity that returning officers bring to their task in conducting Dail Eireann elections is instructive. In any case where a secret ballot is required there should be correct ballot papers with the issue set forth clearly, and, ideally, an independent person should be brought in to supervise the whole operation and adopt much the same role as a returning officer does in the case of a Dail Eireann election. He or she should be impartial, and be seen as such, strict in seeing that the rules are observed and clear in the rulings made.
Therefore, while I agree that the legislation touching the holding of secret ballots is there primarily as a matter of internal trade union management, I reject the submission that once such a shambles as is disclosed as regards the “ballot” that was held here occurs we should simply turn a blind eye to it. The duty to observe the law devolves on everyone – I have already said that simply because the obligation comes through the rules rather than directly from the legislation is of no great importance – so there is a serious obligation on union management to give proper example to the rest of the people by ensuring that the requirements concerning the holding of a proper secret ballot are always observed. Once that is done, then there need be no repetition in the course of judicial proceedings of the circumstances surrounding the holding of the ballot. Things should be manifestly correct, so that time need never again be taken up with a long debate as to the rights and wrongs of the holding of any ballot.
After all, as I already indicated, the legislation solidifies and, indeed, expands the privileged position afforded by the law to trade unions. Privileges carry duties as well as rights.
That said, however, the essential position is that there was here a trade dispute and those engaged in it are protected, and the union has its statutory immunity from suit. This irregular ballot led to a lot of trouble, nonetheless, and many days were spent on it in the High Court. The union cannot avoid blame for that. This will have to be dealt with in deciding on the proper order that should be made on costs.
I would allow the appeal but with the same qualification that Murphy J. has set forth in the course of his judgment as to certain matters on which we should hear further submissions.”
Murphy J.
“Background
The above named Nolan Transport (Oaklands) Limited has carried on the business of haulage contractors from premises at Oaklands, New Ross, County Wexford, since January, 1981. Previously James Nolan (the father) had carried on a similar business from the same premises. He discontinued the business carried on by him in 1980, as a result of financial and other difficulties.
The father and his wife, Joan, have thirteen children, namely, Elizabeth, Anne, Patricia, John, Raymond, Seamus, Noel, Brendan, Richard, Kevin, Joan, Oliver and Sally. The share capital of the plaintiff comprises thirteen shares of £1 and each of the thirteen children is entitled to one such share. Before the plaintiff company was formed, Patricia had had four years experience working in the father’s business. Raymond and Seamus were younger and had little experience of the business at that stage. In order to run the haulage business and to obtain the appropriate Department of Transport licence it was necessary for one of the management team to hold a certificate of professional competence. When the plaintiff was formed only the father had such a certificate. He remained involved in the management of the plaintiff until Patricia obtained the necessary certificate. There is an express finding by the learned trial judge that since that time the father has taken no part in the management of the plaintiff. He is employed largely in a labouring capacity in the plaintiff’s yards with a particular responsibility for the lorry wash and the operation of a J.C.B. which is used to spread gravel across the yard on the premises.
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James Halligan, the first defendant, had been employed by the plaintiff as a driver and in other capacities from time to time from 1981. He returned to the plaintiff in about 1990 and about the end of 1991, resumed working as a driver. Henry Nolan, the second defendant, has been a driver with the plaintiff since June, 1992. Anthony Ayton is a branch official with the fourth defendant (“the union”). At all material times the third defendant worked in the Waterford branch of the union where the secretary was Ms. Margaret DeCourcey. Another official was Ms. Maura Caddigan who joined the Waterford branch in January, 1993.
The plaintiff employed approximately 55 drivers. In December, 1992, some of those drivers wished to join a trade union. Apparently they had a grievance about their pay and conditions. In January, 1993, union membership application forms were distributed. On the 17th January, 1993, a meeting of drivers as union members took place. The first and second defendants and five other drivers were present in addition to the third defendant. Following on that meeting the third defendant wrote to the plaintiff on the 18th January, 1993, claiming that his union had accepted into membership “a large number of your company employees” and seeking a meeting “to set in train the necessary steps to establish what we hope will be a good working relationship”. That letter was addressed to Mr. John Nolan.
On the 19th January, 1993, the first and second defendants and a third driver, Paddy O’Leary, in the course of their duties met the father in the plaintiff’s yard. On the following day, the 20th January, 1993, all three drivers attended at the plaintiff’s premises where they had occasion to meet Mr. Seamus Nolan. Also on the 20th January, 1993, telephone conversations took place between Ms. Margaret DeCourcey and Ms Patricia Nolan as well as a call between the second defendant and Ms. Patricia Nolan. Finally, in relation to the events of that day, Ms. Margaret DeCourcey wrote to Mrs. Nolan but no reply was received to that letter.
The defendants contended that they were dismissed from their employment with the plaintiff by the father on the 19th January, or alternatively, that the conduct of the father and the other members of the Nolan family on the 19th and 20th of January, 1993, led them to believe that they had been so dismissed. The learned trial judge in his judgment expressly rejected the claim that the defendant drivers had been dismissed
by the father. The learned judge held that the father did not have authority to dismiss employees and that the defendants recognised that this was so.
On the 24th January, 1993, a further meeting of the members of the union was held in Waterford. Whilst it appears that the relevant union membership had grown to 23 at that stage those present comprised only five members and two union officials, that is to say, the first three defendants, three further drivers and Ms. DeCourcey. A decision was made to hold a ballot for industrial action. That ballot was held over a number of days at the terminal in Rosslare, the terminal in Pembroke and on a boat plying between those terminals. In all 23 members of the union voted.
By a circular letter dated the 25th January, 1993, the plaintiff informed its employees that they did not have to be a member of a union to work for the plaintiff and requested each employee to sign and return the letter to the plaintiff if he was satisfied with his conditions of employment. All of the office staff of the plaintiff signed the form and all but four, or perhaps five, of the drivers likewise signed.
At the meeting of the Waterford branch of the union held on the 31st January, 1993, seven driver members were present as was the third defendant and Ms. DeCourcey. The votes were counted and the result which was declared and circulated was that twenty had voted in favour of strike action and three against. A further meeting of the members was called for the 7th February. On the 2nd February, 1993, strike notice was served for the 11th February.
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The action came on for hearing before Barron J. in June, 1994 and continued for some 27 days during which he heard nearly 100 witnesses.
The learned trial judge identified the main issues in the case as follows:-
“1. Whether or not a trade dispute existed?
2. Whether or not the union was entitled to authorise strike action having regard to the manner in which the secret ballot was conducted and the manner in which those voting actually voted?”
The learned trial judge found that there was no bona fide trade dispute.
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Was there a trade dispute?
In relation to the issue as to whether a trade dispute existed the vital question is whether the first and second defendants or their union believed that the three employees or some of them had been dismissed from their employment with the plaintiff in January, 1993.
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It is the evidence of the employees that they believed that they were dismissed. However, they did consult with the officials of the union on the evening of the 19th January, when they were advised to turn up for work the following day and “verify” whether or not they had been dismissed.
……..In those circumstances did the employees who subsequently went on strike believe that they had been dismissed from their employment with the plaintiff?
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It seems to me that the inference to be drawn from the events of the 19th January, is that the father purported to dismiss the three employees although he had no authority so to do. On the other hand the events, or non-events, of the 20th January, would appear to point strongly to the conclusion that Ms. Patricia Nolan and Mr. Seamus Nolan were ratifying the attitude adopted by their father the previous day. Certainly the plaintiff did not – at that stage – “clearly and unequivocally” inform the men and the union that there was no impediment to their return to work.
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However, these dismissals cannot be isolated from the other events taking place at that time. In relation to those events, I have found that the union acted improperly. I cannot divorce those matters from the issue of the dismissals. It seems to me that the union was following one overall strategy and that was to represent the entire work force. I do not believe that the union ever regarded this issue of dismissals as more than an event to use to its advantage. Counsel for the plaintiff says that these dismissals were contrived. The rows which led to the allegations were not contrived. I do hold, however, that this aspect of the dispute was not pursued bona fide to get the two men back to work but as part of the policy to take all the drivers into membership.”
I believe that the learned trial judge accepted that the first defendant did have an honest belief that he had been dismissed from his employment. The learned judge held, however, that the existence of a trade dispute based on that belief did not in the circumstances provide the statutory defence or immunities ordinarily available to employees and trade unions. What Barron J. decided was that, first, the dispute relating to the employment of the first defendant and the other drivers was not in truth or in substance the injustice which the union sought to remedy by the industrial action and, secondly, that the true purpose of that industrial action was to coerce all of the employees of the plaintiff into the membership of the union.
I find myself in disagreement with Barron J. as to the inferences which he drew in relation to the motivation and purpose of the union and the legal principles which are applicable where industrial action is undertaken with a view to achieving more than one objective. The trial judge adverted to a number of factors including the speed with which events unfolded; the absence of proper consultation for the purpose of considering industrial action; the publication of slanted and dishonest communications by the union officials; exaggerated statements as to the number of drivers who had joined the union; the failure of previous efforts to organise the union within the plaintiff. These were the factors which the judge concluded supported the allegation “that the real purpose of the union’s actions was to represent the entire work force”. I do not agree that those factors would justify the inference that a trade union was attempting or would attempt to institute industrial action for the purpose of coercing an employer and its employees into a closed shop agreement. I would readily accept that any trade union would wish to expand its membership and the extent of its representation in any industry or with any particular employer but I would be very slow indeed to infer that a trade union would, in the present state of the law, attempt to impose a closed shop.
The Educational Company of Ireland Ltd. and Another v. Fitzpatrick and Ors. (No. 2) [1961] I.R. 345, is long established authority for the proposition that the Trade Disputes Act, 1906, could not be relied upon to justify picketing in aid of a dispute concerned with an attempt to deprive persons of the right of association (or disassociation) guaranteed by the Constitution. As Kingsmill Moore J. said (at p. 398):-
“The definition of trade dispute must be read as if there were attached thereto the words, ‘Provided that a dispute between employers and workmen or between workmen and workmen as to whether a person shall or shall not become or remain a member of a trade union or having as its object a frustration of the right of any person to choose with whom he will or will not be associated in any form of union or association shall not be deemed to be a trade dispute for the purposes of this Act’.”
In that case it was argued that the dispute was being used “as an instrument or a cloak” to defeat the rights of certain aggrieved workers. Those employees of the Educational Company, who were members of a trade union, voted to refuse to remain at work with fellow employees who were not members of that union. When the management of the plaintiff company declined to compel any of the employees to join the union concerned it was resolved by the executive committee of that union to serve strike notice in support of their demands. It was clearly and frankly asserted then, though it might be surprising now, that the union and its members had the right to engage in a trade dispute for the purpose of compelling fellow members to join the trade union. There was nothing secretive or underhand about the actions undertaken by the union or its members. Nor was there any real doubt but that the dispute was or would have been a dispute within the meaning of the Act of 1906, as enacted. The issue was whether the protection afforded by that Act could be availed of where the industrial action to be taken infringed the right of the non-union workmen’s constitutional right of free disassociation.
65. The present case is almost totally the reverse of the Educational Company case. Here the trade union disavow any intention to recruit all the drivers in the company or to compel any of them to join the union or to pressurise their employer to achieve that result. The expressed aims of the industrial action and the mandate expressly sought by the union related to the reinstatement of employees who the union claimed had been dismissed. It could never be suggested that that purpose, if genuine, offended any constitutional provision.
66. The learned trial judge placed very considerable reliance on an extract quoted from the judgment of O’Daly J in the Silver Tassie Co. Ltd v Cleary [1958] ILTR 27 in the following terms (at 31):
67. The dispute must be genuine and not merely colourable. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties.
68. In fact O’Daly J was dealing with two different concepts in those sentences. He had quoted Conway v Wade [1909] AC 506 as authority for the proposition that ‘a mere personal quarrel or grumbling or an agitation will not suffice; it must he fairly definite and of real substance’. It was in that context that he explained that ‘[t]he [trade] dispute must be genuine and not merely colourable.’
69. The entire basis of the Silver Tassie case was that an employee of the plaintiff company had been dismissed – allegedly on the grounds of redundancy – and his union demanded his reinstatement and took industrial action in pursuance of that demand. It was contended that the demand for reinstatement and its refusal simpliciter constituted a trade dispute. Neither Dixon J in the High Court nor O’Daly J in the Supreme Court dealt with the issue on that basis. They both held that there was a trade dispute where the employee bona fide believed that there were no proper grounds for his dismissal. Dixon J had expressed his views on the matter in the following terms (at 29):-
70. It was the function of the court to decide whether such a dispute existed but it was not the function or right of the court to decide whether the attitude or belief of the employee or Union was a well founded one, except insofar as the complete lack of any reasonable basis for the particular attitude or belief might lead to the conclusion that it was not a genuine or bona fide one. The absence of bona fides would involve the absence of any genuine dispute.
71. It was that view which O’ Daly J was upholding when he went on to say:-
72. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties.
73. That sentence read independently of the facts under consideration can be misleading and perhaps misled the learned trial judge. Taken in context it does not authorise a review of the conduct of those engaged in industrial action to determine their motivation or ultimate ambitions. Applied to the facts of the present case the conclusions of the High Court and the Supreme Court in the Silver Tassie case would only justify the Court in the instant matter in considering whether any evidence existed to justify the belief of Mr. Halligan and his union that he had been dismissed, and more particularly wrongfully dismissed, from his employment with the company. Having regard to what the father said, and what Mr. Seamus Nolan and Ms Patricia Nolan did not say, as to Mr. Halligan’s employment with the company, provides at the very least a reasonable basis for the belief claimed by Mr. Halligan and his union. In the circumstances I believe that the dispute between the appellants and the company was bona fide in the sense that Mr. Halligan had an honest belief for which there were reasonable grounds and further that the dispute was genuine in the sense that it represented the immediate quarrel between the parties. I would hesitate to conclude that the particular factors identified by the learned trial judge in his judgment, however reprehensible they may have been, justified the inference of an intention on the part of the union to compel the company’s employees to join the union. Even if that could be identified as the ultimate goal of the union it did not represent the current dispute. In the very nature of the declared aims of the dispute I do not see how it could have achieved the ambitions which have been attributed to the appellant union. Perhaps successful industrial action would have enhanced the standing of the union with many of the employees but a gain in membership in that way could not be challenged as unconstitutional or improper. At worst it would seem to me that the irregular and improper conduct in which the union was engaged might suggest a willingness by it to take industrial action in the future for an improper purpose but no future plan could render unlawful a dispute which was protected by the relevant legislation nor, indeed, render lawful a current dispute which did not have the necessary statutory ingredients to gain such protection.
74. Part of the difficulty arises from the fact that lawyers and judges have used the words ‘bona fide trade dispute’ with different meanings and in different contexts. If employers and workers both acknowledge themselves to be engaged in a trade dispute there is no difficulty in describing it as a bona fide trade dispute. But a bona fide trade dispute may also exist where one party denies that there is any dispute and the other believes that he has been wronged and is in dispute as a result. On the other hand an outside party or ‘meddler’ who had no legitimate interest of his own to protect but who stirred up trouble in a business for reasons of malice or spite could not claim to be engaged in a bona fide trade dispute. This kind of case, which must surely be rare, was referred to by Lord Loreburn in Conway v Wade, where he said (at 512):-
75. If, however, some meddler sought to use the trade dispute as a cloak beneath which to interfere with impunity in other people’s work or business, a jury would be entirely justified in saying that what he did was done in contemplation or in furtherance, not of the trade dispute, but of his own designs, sectarian, political, or purely mischievous, as the case might be. These words do, in my opinion, in some sense import motive, and in the case I have put a quite different motive would be present.
76. If however a bona fide trade dispute does exist between an employer and workers, some of whom happen to be members of a trade union, the trade union is entitled, within the constitution and the law, to support its members who are in dispute. That, in doing this, it may be partly motivated by the aim of impressing its members and other workers and enhancing its own reputation and membership appears to me to he quite irrelevant as long as it acts within the law and does not attempt to infringe the constitutional right of each worker to join or not to join a trade union as he himself thinks best.
77. It follows that the appellants were entitled to the statutory immunities conferred on those engaged in activities in furtherance of a trade dispute save in so far as those privileges were removed or restricted by the Industrial Relations Act 1990.
Was the union entitled to authorise strike action?
Clearly the Industrial Relations Act 1990 is of historic importance. It repealed in whole the Trade Disputes Act 1906 which had for nearly a century provided the legal framework by which industrial action had been governed. Whilst many of the concepts enshrined in the 1906 Act were preserved and much of the detail reenacted, significant amendments have been made to the previous legislation. Clearly the legislature sought to achieve a greater degree of responsibility by unions and their members in pursuing industrial action; additional protections for trade unions which acted with that sense of responsibility and a degree of discipline within the trade union movement which would ensure that settlements negotiated with employers would he observed by all trade unionists.
79. It has been said that section 14 requires that industrial action should be authorised by a secret ballot but such a statement is misleading. The statute requires that the rules of the trade union should contain provisions in relation to such ballots and imposes sanctions for the failure either to have such rules or to observe them. On the face of it, the participation by a trade union in or its support for a strike or other industrial action without the authority of a secret ballot of its members would he a matter of internal management of the affairs of the union and constitute a breach of contract between the executive of the union and the membership rather than a breach of statutory duty. This interpretation is confirmed by section 14(3) which expressly provides that the rights in relation to a ballot are ‘conferred on the members of the trade union concerned and on no other person’.
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81. It is the excluded sections which confer immunity on persons who might otherwise be liable for conspiracy criminally, picketing civilly or inducing breach of contract or interfering with trade or business.
82. Whilst, however, individuals may lose these valuable protections where they engage in industrial action ‘in disregard of or contrary to the outcome of a secret ballot,’ unions themselves are not penalised in that way. …..
85. Where employees engage in industrial action ‘in disregard’ of or contrary to ‘the outcome of a secret ballot’ their activities do not enjoy the statutory protections. In the present case either no secret ballot was held or else the secret ballot ‘in its outcome’ authorised the industrial action so that there is no question of the individual appellants acting in disregard of the resolution of their colleagues. Even if the evidence justified the conclusion that the majority of the employee/members of the union voted against industrial action the reconstruction of the resolution in pursuance of the decision of the court could hardly be regarded as ‘the outcome’ of the ballot and certainly it could not be suggested that the striking members acted in disregard of it. From the point of view of the union the holding or not holding of the secret ballot or the manner in which it was held does not impinge in any way on the rights of the union, vis-à-vis the company employers. Their immunity under section 13 of the 1990 Act would remain unaffected.
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89. The object of that subsection is relatively clear. Prior to its enactment it was quite a common occurrence for employers to apply to the court for an interim hut not always an interlocutory injunction restraining picketing, in particular on the ground that there was a serious question to be tried as to whether there was any dispute in existence and that the plaintiff would suffer irreparable damage if the picketing continued and for which damages would not be an adequate remedy. It is a matter of common knowledge that the frequent use of that procedure by employers meant that the use of what were otherwise legitimate methods sanctioned by the law by trade unions of advancing their interests were effectively neutralised by the way in which the law operated.
. . . Be that as it may, whilst [the subsection] does afford an important protection to trade unions, there is also a specific and very important requirement that the subsection only comes into place, as it were, where there has been a secret ballot held in accordance with the rules of the trade union, as provided for in section 14. The other factor which the Oireachtas clearly took into account is that the protection of this section should only be available to trade unions who ensure that the action undertaken has the support of union members and that it has their support as demonstrated in a secret ballot.
90. On the interpretation of section 19(2) Keane J said as follows (at 4):-
91. I pause here to say that whilst there appears to he no authority on the section, it seems to me as a matter of first impression that the onus must be on the person resisting the injunction to establish that the provisions of section 14 have been complied with, which seems to me to be crucial to the operation of the section.
. . . Before a trade union is afforded the protection of section 19 and, conversely, an employer is deprived of the protection that he would normally have at common law in relation to the obtaining of an interlocutory injunction in circumstances where his business is or could be affected, I would take the view that the court must be satisfied on the evidence before it that section 14 has been complied with.’
92. In fact Keane J went on to say that there was not evidence before him of sufficient weight to indicate that section 14 had been complied with and accordingly refused the benefit of section 19(2) to the trade union. Clearly the learned judge made that determination on the balance of probabilities. In relation to the substantive issue between the parties he was merely concerned as to whether ‘there was a serious issue to be tried’. In the Crampton case Laffoy J agreed that the onus of the conditions precedent to the operation of section 19(2) fell on the party resisting the injunction. Laffoy J analysed the statutory conditions and in particular referred to the requirements of section 14(2)(f) relating to the proposals voted upon and pointed out that there was no evidence before her in relation to compliance with such conditions. Accordingly, she rejected the particular defence or restriction claimed by the trade union under section 19 of the 1990 Act. The judgment of Laffoy J was appealed to this Court and was upheld in an ex tempore judgment delivered by the Chief Justice reported at [1998] ILRM 4. In particular the Chief Justice concluded at 18 that:-
the learned trial Judge was entitled to come to the conclusion that the condition precedent to the implementation of section 19 was not established.
93. It is proper, however, to note that the Supreme Court appeared to have had before it evidence which was not available in the High Court. At 16 the Chief Justice commented:-
94. I am very conscious of the fact that in her recital of the relevant facts, [the judge] did not have the benefit of the affidavits sworn by Mr. Lamon dealing in detail with the circumstances in which the secret ballot was held, the voting thereon and of such like.
95. Again the Chief Justice raised without resolving the issue whether a proposal put before a secret ballot for the purposes of section 14 of the 1990 Act must particularise the nature of the industrial action for which the trade unions sought the support of their members.
96. In the circumstances it may be said that there has not been a definitive interpretation of section 19(2) of 1990 Act but I would find it difficult to escape the conclusion reached by Keane J and accepted by Laffoy J that the onus lies upon the party resisting an application for an interlocutory injunction to show that a secret ballot as envisaged section 14 has been held. Moreover it could hardly be sufficient to establish the existence of a stateable case in relation to the compliance with the rules required to be adopted by a union pursuant to section 14 aforesaid. The decision of a court on an interlocutory application as to whether or not the particular immunity granted by section 19(2) is available is itself a final decision and determines finally whether that statutory benefit is available to the trade union. Concern must exist, as to how decisions of that nature could be made in practice. There maybe serious difficulty, and even a degree of unreality, in requiring the court to make an actual determination on the balance of probabilities as to whether all of the requirements of the secret ballot have been complied with when the substantive issue itself is dealt with at that stage on the basis of ‘a serious issue to he tried’. The demands which such a requirement could impose are illustrated by the urgency with which the interlocutory proceedings in the Crampton case were dealt with in both the High Court and this Court and to which the Chief Justice drew attention in his judgment.
97. I am confident that the trade union movement will, if it has not already done so, arrange that the rules of all unions are amended so as to comply with the requirements of section 14 and, of equal importance, that secret ballots will he conducted not merely in accordance with the terms of such rules hut also under professional and independent guidance which will guarantee that all appropriate conditions are complied with and facilitate the union in proving that such was the case. Clearly the events which the learned trial judge found to have happened in the present case must never occur again. The difficulties which emerged in the Crampton case must be avoided. No doubt trade unions will comply with their own regulations. Furthermore, they owe it not only to themselves but also to their members and to the public to be in a position where they can comfortably demonstrate such compliance. When such steps have been taken perhaps the problems in relation to the interpretation of section 19 will become irrelevant. In any event I would prefer to reserve a final decision as to the proper interpretation of that section until a case directly involving it comes before the Court.
98. The conclusion that a trade dispute exists and that the statutory immunities are available to appellants means that the judgment of the learned trial judge cannot be upheld. The injunctions granted must be discharged. Whether any finding of wrong doing by any of the defendants or any part of the award against them can be sustained is a matter on which the parties must be heard before a final order can be made. “
The Roundabout Ltd. v. Beirne and Others
[1959] I.R. 423
Dixon J.
“ I do not think that it is necessary for me to reserve my decision, as the matter seems to come down to a very net point, a technical one perhaps, but the whole subject of trade disputes is itself rather technical. There is no doubt that a trade dispute was raised and existed between the Trade Union and some of its members, on the one hand, and the Marian Park Inn Company, on the other hand.
That company has ceased to carry on business in these premises, and the only question in this case is whether the trade dispute survives as against the new company which has been formed and which has taken a lease of the premises from the Marian Park Inn Company. The trade dispute still exists with what I may call the old company, and the question is whether the Union can avail itself of that dispute for the purpose of picketing the premises which are now occupied, and in which business is now carried on, by the new company.
The new company is in law a distinct entity, as is the old company. Each company is what is known as a legal person. I have to regard the two companies as distinct in the same way as I would regard two distinct individuals. I must therefore proceed on the basis that a new and different person is now in occupation of the premises and carrying on business there.
It has been suggested and there is some basis for the suggestion that the new company was formed for the purpose of getting rid of the trade dispute and also of enabling the employment of Union staff to be dispensed with. There is considerable substance in that suggestion. I think that it is quite permissible to describe the formation of the new company as a subterfuge a legal subterfuge to put an end to the trade dispute and enable the business to be carried on without the inconvenience of being subject to the picket. To this description there are two qualifications: first, that even though the formation of the new company may be a subterfuge, the question I have to decide is not ruled by that; the question which I must determine is whether it is a successful subterfuge, capable of effectually achieving its purpose. The second qualification is that I do not think that the sole, or possibly even the primary, purpose of the formation of the new company was to get rid of the trade dispute. I think that there was a genuine idea of getting new blood into the business and a genuine idea of the business eventually being taken over in some way by which the Morans would cease to have a substantial interest, and might possibly cease to have any interest in the premises or business. At the moment, indeed, the Morans are in control, constituting the three permanent directors of the new company. The other directors of the new company are at their mercy in a sensein the sense that, if the permanent directors see fit to remove the other directors, they can require them to transfer their entire shares or interest in the company. The new directors, however, are satisfied with that position; they are satisfied to rely on the Morans, and to trust to the
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The new company here is not an employer. It is true that it is a potential employer in the sense that it may well in the future be compelled by circumstances to take on staff, but at present it is not, and never has been, an employer in the sense in which that term is used in the Trade Disputes Act, 1906. It is true that the directors of the company do work in the licensed premises, but a distinction must be observed between directors who do work for a company and workmen who are employed by the company. The former cannot be regarded as working in pursuance of any contract of employment, and, therefore, cannot be regarded as workmen of the company. The fact that the company may at some future time be an employer is not sufficient to entitle me to hold that it is at present an employer, so as to entitle the defendants to claim the protection of the Trade Disputes Act, 1906.
The onus of establishing the existence of a trade dispute lies on the persons alleging its existence; in my view no trade dispute has been shown to exist between the plaintiffs, Roundabout Ltd., and the defendants, and accordingly the plaintiffs are entitled to have the interim injunction continued in a more permanent form. I propose, however, to grant the perpetual injunction only against the four named defendants. The plaintiffs are also entitled to the costs of their action against the defendants.
Malincross Ltd. v. Building and Allied Trades Union
[2001] IEHC 170
Mr. Justice McCracken
“CONSTRUCTION OF SECTION 11(1)
6. This Section provides that it is lawful in contemplation or a furtherance of a trade dispute to attend at “a place where their employer works or carries on business”. While the Defendants accept that the employer no longer works or carries on business at the site, they say that on the proper construction of this phrase, they are entitled to picket at any place where the employer did work or carry on business in the past. While to my mind this is a very strained construction of the present tense used in the section, Mr. Kerr referred me to the Dáil Debates which disclose that an amendment was moved to add the words “or, at the commencement of the dispute, had normally worked or had normally carried on business”. This amendment was withdrawn following a statement by the then Minister for Labour that that situation was already covered by the wording used, which the Minister called “The historic present tense”. While I do not think that the views of the Minister in a Dáil Debate should determine the construction of this section, nevertheless I think I can have regard to it in determining whether, at the hearing of this action, there is a fair question to be tried, as to the construction of the section. However, I have no doubt that the hearing of an Interlocutory Injunction is not the time to enter into a detailed discussion on grammar. I am satisfied, however, that there is a fair case to be tried as to the construction of Section 11(1).
2. SECTION 19(2)
7. The defendant argues that the court cannot grant an Interlocutory Injunction because of the provisions of this sub-section which reads:-
“Where a secret ballot has been held in accordance with the rules of a Trade Union as provided for in Section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the Trade Union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an Injunction restraining the strike or other industrial action where the Respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute”.
8. I am satisfied that the Union in the present case held a secret ballot in accordance with its rules, and that those rules were as provided for in Section 14 of the Act, and I am also satisfied that the Union gave notice of not less than one week to the employer of its intention to take industrial action. I am also satisfied that the Union has established a fair case that it was, and I would emphasise that the sub-section uses the past tense, acting in contemplation or furtherance of a trade dispute, as there was clearly a trade dispute in existence at the time the ballot was held.
9. The problem for the Defendants exists by reason of the wording of the proposal which was balloted on. The ballot paper read:-
“SUBJECT: to engage in industrial action with P. P. O’Sullivan (Leinster) Ltd., including the placing of pickets on company site at Naul Road, Balbriggan”.
10. The ballot paper then contained boxes headed “In Favour” and “Against”. There is no doubt that this authorised the original picketing, as it would be quite clearly understood by all members that the site in Balbriggan was what was referred to as “the company site”, as it was the site where the employer was carrying on business. The question remains whether this ballot authorised the placing of pickets at the site when it ceased to be the company site of the employer.
11. The extent to which the proposals in the ballot had to identify the nature of the industrial action under Section 19(2) was considered by the Supreme Court in G & T Crampton Ltd. v. Building & Allied Trades Union & Ors [1998] 1 ILRM 430. In that case the ballot had simply been “on proposal to engage in strike or other industrial action” without specifying the nature of the strike or industrial action at all. In dealing with this issue Hamilton C. J. said at page 437 :-
“I am satisfied that the Affidavits disclosed a fair question to be tried on a question as to whether or not the provisions of Section 11(1) applied to the Defendants in the proceedings and also that a number of questions stand to be determined with regard to the interpretation of the provisions of Section 14 and Section 19 of the Industrial Relations Act and the questions to be raised there as to whether or not in the conduct of a ballot a Union should be required to particularise the nature of the industrial action for which they seek support of their members and that the proposal being put before those members should particularise such action and (I am expressing no concluded view on it), whether it is not sufficient to comply with the requirements of such act merely to have a ballot favouring a strike or other industrial action without particularising the nature of the industrial action to be taken by the Union and for which they seek their members approval. This is a serious issue to be tried in this case because undoubtedly from an examination of the ballot papers, first of all, no actual proposal was placed before the members and even if it were interpreted that the heading “Ballot on proposal to engage in strike or other industrial action” was held to be a sufficient proposal, the question arises again as to whether it is in compliance with the provisions of Section 14 and Section 19 of the Act.”
12. He then concluded:-
“That being so I am satisfied that there are two issues to be tried in this case that have been raised by the Plaintiff in these proceedings and I am satisfied that there is a fundamental issue with regard to the interpretation of Sections 14 and 19 of the Act and that the learned Trial Judge was entitled to come to the conclusion that the condition precedent to the implementation of Section 19 was not established.”
13. Unfortunately, this case never proceeded to a full hearing, and therefore these matters were not determined, but in my view the issues which arise in the present case are almost identical to those that arose in the G. & T. Crampton case. The sufficiency of the secret ballot is clearly a condition precedent to the right of the Defendants to resist an Interlocutory Injunction under Section 19(2). While the members of the Union clearly authorised strike action at the employers’ premises, and therefore direct strike action against the employer, I think there is a serious issue as to whether that in itself is sufficient to justify strike action in relation to what were once the employers’ premises but no longer remain so. The purpose of the Act would appear to be to ensure that, if the Union is entitled to the protection of Section 19(2), then it must have the clear support of its members. I think there is a serious issue to tried, but no more as to whether the picketing of the Plaintiff’s premises once the Defendant has left those premises is authorised by the ballot, and until that question has been determined, in my view the condition precedent to Section 19(2) has not been established by the Defendants.
3. TRANSFER OF UNDERTAKING
14. The Defendants also contend that, even if the employer has ceased to have any function in relation to the site, nevertheless there has been a transfer of undertaking from the employer to the Plaintiff within the meaning of the Directive 77/187/EEC as amended by Directive 98/50/EC. This is a very complex matter which would require a great deal more evidence than is before me, and in any event in my view is not a matter to be determined on an Interlocutory Application. The whole relationship between the employer and the Plaintiff would have to be investigated in detail, both in relation to the formation of the original contract and in relation to its termination. It is possibly an arguable point that both were successfully pursuing the same economic activity, namely the development of a housing estate on the site, but it is undoubtedly a matter for the ultimate hearing of the action.
15. Accordingly, as I have determined that there is a bona fide dispute as to whether the preconditions of Section 19(2) have been complied with, the Defendant is not entitled to rely upon the subsection (2) to prevent the grant of an Interlocutory Injunction. In those circumstances, I then have to apply the ordinary principles as laid down by the Supreme Court in Campus Oil Limited v. Minister for Industry and Energy [1983] IR 88.
16. If I refuse an Injunction and it is ultimately held that the Plaintiff was ultimately to succeed, I am quite satisfied that the Plaintiff would suffer irreparable loss and damage. The Plaintiff has entered into contracts with purchasers of 28 different houses, and would be unable to complete those contracts. Quite apart from its loss of profits on the contracts, which would probably be quantifiable, the Plaintiff might well also be liable in damages to the 28 purchasers, and its reputation as a developer could be seriously affected. On the other hand, if an Injunction is granted and the Defendants should ultimately succeed, I think the damage to them would be minimal. While the Defendants contend that they are entitled to picket in furtherance of their trade dispute with the employer, they have not demonstrated in any convincing manner just how that trade dispute could be affected by picketing the Plaintiff. Certainly, any loss or disadvantage which might be incurred by the Defendants would be far outweighed by the enormous damage which would be caused to the Plaintiff should an Injunction be wrongly refused, and I have no doubt that the balance of convenience strongly lies in favour of the Plaintiff. That being so, on terms that the Plaintiff give an undertaking as to damages, I will grant the Injunction sought. “
Goulding Chemicals Ltd. v. Bolger
[1977] I.R. 211
O’Higgins C.J.
This is an appeal by the plaintiff company from the judgment and order of Mr. Justice Hamilton dismissing its claim for an injunction against picketing and for associated relief. The defendants are all members of the Irish Transport and General Workers Union (ITGWU) and were all former employees of the plaintiff company, being part of the workforce at the plaintiffs’ plant at East Wall, Dublin. The issues which have arisen on this appeal require, in my view, to be considered in the light of facts which were established in evidence before the learned trial judge. A short reference to these facts would appear appropriate.
The plaintiff company had two plants for the manufacture of fertilizers one at East Wall in Dublin and the other in Cork. By reason of consistent and substantial falling off in the plaintiffs’ sales on the home market, it was decided to close down the East Wall plant and to concentrate future effort on the Cork plant. The date for the closure of the East Wall plant was to be the 30th July, 1976. Having been reached by the management of the plaintiff company, this decision was communicated to a specially-convened meeting of the staff and payroll unions representing all of those employed at the East Wall plant. This meeting was held on the 14th June, 1976, and it was the first of a series of meetings between the management of the plaintiff company and the different unions having as their object the acceptance by the unions of the inevitability of the closing
The learned trial judge refused the plaintiffs’ claim for an injunction and held that the picketing complained of was in pursuance of a bona fide trade dispute; this appeal has been brought by the plaintiffs. At the hearing of the plaintiffs’ claim for an injunction in the High Court and because of the urgency of the matter, pleadings were dispensed with and the issue was decided by the learned trial judge on the affidavits filed on behalf of each of the parties and on the oral evidence which he heard. On the lodging of the appeal this Court thought it desirable, in view of the absence of pleadings, to require written submissions to be filed by the parties.
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I now turn to the issues which have arisen on this appeal and I propose to consider first the meaning and effect of s. 11 of the Act of 1941. [The Chief Justice referred to the provisions46 of s. 11 of the Act of 1941, and continued] It was submitted on behalf of the plaintiffs that the effect of this section is to confine the protection given by ss. 2, 3 and 4 of the Trade Disputes Act, 1906, to such authorised trade unions holding negotiation licences issued under the Act of 1941 and to the members and officials of such unions acting with the authority, or pursuant to a decision, of their union. If this be the true meaning and effect of s. 11 of the Act of 1941 then, on the facts of this case, the protection of the Act of 1906 could not be available to the defendants. The defendants have acted in this case on their own and in defiance of a settlement reached through the proper channels with the organised labour force employed by the plaintiffs. In addition they have acted in opposition to the views and, therefore, without the approval of their own union. If s. 11 of the Act of 1941 confined the right to picket to those unions which hold a negotiation licence and to their members and officials acting as such, then it brought about a major change and reform in trade-union law which has gone almost unnoticed through nearly four decades. Can this be the effect of the section? If it is, then it is the duty of this Court so to declare whatever may be the consequences.
In construing a statute certain rules have been laid down which, when observed, lead to some certainty of construction. In the first place, one seeks the intention in the words used which must, if they are plain and unambiguous, be applied as they stand. The words used in s. 11, sub-s. 1, of the Act of 1941 state, and state plainly, that the three named sections of the Act of 1906 shall “apply only” to the described trade unions and”the members and officials of such trade unions.” The section goes on to add finally in relation to the application of the three sections the words”and not otherwise.” Here the words used appear to be used without ambiguity and appear clearly to confine the protection of the Act of 1906 to the unions and the persons indicated. Therefore, it seems to me that one starts off in construing the sub-section by accepting the clear effect of the words used as being to abolish the protection previously provided generally by ss. 2, 3 and 4 of the Act of 1906 except in the case of the unions and persons mentioned. But the problem of construction does not end at this. Section 11, sub-s. 1, of the Act of 1941 must now be read in conjunction with the three sections47 of the Act of 1906 which are now declared to operate only in the confined area permitted by s. 11, sub-s. 1, of the Act of 1941. As one looks at the language of these three sections now applied to the confined area by s. 11, sub-s. 1, some further rules of construction require to be mentioned. It seems to me that one must regard s. 11, sub-s. 1, of the Act of 1941 as having the effect of re-enacting ss. 2, 3 and 4 of the Act of 1906 as applying to the unions and persons mentioned by that sub-section.
It is well established that, if there is nothing to modify, nothing to alter, nothing to qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning. It is to be presumed that words are not used in a statute without a meaning and, accordingly, effect must be given, if possible, to all the words used, for, as has been said, “the legislature is deemed not to waste its words or to say anything in vain”per Lord Sumner in Quebec Railway, Light, Heat and Power Co. v. Vandry. 48
Here one notes that in s. 2 of the Act of 1906 which is now to operate as provided by s. 11, sub-s. 1, of the Act of 1941, the protection given is accorded to “one or more persons, acting on their own behalf or on behalf of a trade union.” How are these words to be construed in the new application of the section? They cannot be ignored. It must be assumed that they were contemplated by the Oireachtas as being words in a section which would operate as indicated by s. 11, sub-s. 1, of the Act of 1941. It seems to me that one is driven to the conclusion that the protection given by s. 2 of the Act of 1906 is by s. 11, sub-s. 1, of the Act of 1941 to apply to authorised trade unions holding a negotiation licence and to the officers and members of these unions whether such officers and members act on behalf of the union or on their own behalf. In relation to s. 3 of the Act of 1906, it has been pointed out in argument to this Court that the words”trade union” nowhere appear. This, of course, is true but one must seek a meaning and a sense in the application of that section by s. 11, sub-s. 1, of the Act of 1941. In so doing, I find it not unreasonable to conclude that s. 3 of the Act of 1906 appears to apply under s. 11, sub-s. 1, of the Act of 1941 to persons who are officers or members of a trade union holding a negotiation licence, whether such persons are acting on behalf of the union or on their own behalf. No problem arises with regard to the application of s. 4 of the Act of 1906 in the limited field provided by s. 11, sub-s. 1, of the Act of 1941.
In my view, therefore, the effect of s. 11, sub-s. 1, of the Act of 1941 is to confine the protection and immunities given by ss. 2, 3 and 4 of the Act of 1906 to authorised trade unions holding negotiation licences and to the officials and members of such unions whether acting on behalf of their unions or on their own behalf. If this be the effect of s. 11, sub-s. 1, of the Act of 1941 then the submission made by the plaintiffs on this aspect of the case fails. All the defendants are members of an authorised trade union holding a negotiation licence. On the view I have taken, the provisions of s. 11, sub-s. 1, of the Act of 1941 do not delimit in any way their rights under the Act of 1906.
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I turn now to consider the other submissions made on behalf of the plaintiffs on the hearing of this appeal. These related to the other four grounds of appeal as set out in the written submissions lodged by the plaintiffs pursuant to the direction of this Court. I will take these in the order in which they were dealt with on the appeal.
First, it was submitted that on the facts of this case no true dispute existed and that on that account the picketing complained of was illegal. This submission was put forward on two distinct grounds. In the first place it was said that a trade dispute must relate to the employment or non-employment or the terms of employment or the conditions of labour of any person. It was said that the plaintiffs had ceased to carry on their operations, and that they had lawfully terminated the contracts of service of their employees and were in the process of locking up and preserving their empty plant. It was submitted that in such circumstances there could not be any question of employment or non-employment because such could only arise when the plaintiffs had a choice to employ or to refuse employment, and that such a choice did not exist on the facts of this case. Put in another way, it was suggested that the reality was that the picketing was in pursuance of a claim by the defendants to be employed or to have the plant remain open or to have employment guaranteed to them at some future date, and that this would not be sufficient to constitute a trade dispute. In support of these submissions reliance was placed on Conway v.Wade 49; Barton v. Harten 50; and British and Irish Steampacket Co. Ltd. v.Branigan. 51 The second ground of this submission was that, as the plaintiffs’ dismissals of the defendants were lawful in that their contracts of service were lawfully terminated, there could in such circumstances be no trade dispute. Reliance in support of this contention was placed on the decision and reasoning of Overend J. in Doran v. Lennon. 52
I have considered this ground of appeal and the submissions made in support of it very carefully. I have considerable sympathy with the contention that for a trade dispute to exist there must be some reality in the question of possible employment in the sense that there must be an employer having employment available. However, I fear that this contention is irrelevant on the facts of this case. As I read the transcript and the facts, as found by the learned High Court judge, it was precisely because they claimed that the plaintiffs had employment to give that they were picketing the premises. It is clear that after the closing of the plant employment became available on the premises in relation to the removing of certain raw materials which were intended to be sold or used in Cork, in maintaining and mothballing machinery, and generally in relation to the security of the plant and such machinery and other assets as remain there. As was made clear in evidence, the defendants felt that they should have been employed on some of this work. While their original opposition inside their union and at general staff meetings to the conclusion of any agreement with the plaintiffs may have had as its object the impossible aim of preventing the plaintiffs closing down their operations and, to that extent, may not have constituted a trade dispute, it seems clear that their subsequent conduct was actuated by the failure or refusal of the plaintiffs to employ them or other East Wall employees on the work which required to be done at the East Wall plant as a consequence of the closure of the plant itself. For this reason it seems that, irrespective of its merits, this has been a dispute between the defendants as workmen and the plaintiffs as employers connected with the non-employment of the defendants or of other former employees of the plaintiffs at the East Wall premises in the work continuing to be done on such premises. Therefore, on the evidence and facts of this case I am of the opinion that a trade dispute existed.
The second of the plaintiffs’ submissions in support of this ground of appeal was to the effect that where a dismissal of a workman was lawful no trade dispute could be raised in relation to it. It was not disputed that the contracts of service of all the defendants had been lawfully terminated, and so it was contended that none of them could raise a bona fide trade dispute in relation to what was lawfully done by their employers, the plaintiffs. As a corollary, it was also urged that the defendants, having been properly and lawfully dismissed, were no longer workmen since they were not in employment and, therefore, could not raise a trade dispute. Reliance was placed on Doran v. Lennon 53 where Overend J. held that workers who had walked off the job and who were, on that account dismissed, could not raise a trade dispute. At p. 326 of the report he said:
“If it were otherwise, then every employee of a commercial firm, who broke his contract and was dismissed for cause, would be entitled to picket his late master’s premises and yet claim the protection of the statute.”
While the facts of Doran v. Lennon 54 are somewhat peculiar and special, it does appear from these facts and from the passage of his judgment which I have quoted that Overend J. was of the opinion that a lawful dismissal precluded the raising of a trade dispute. I cannot agree with this view and I think it is erroneous. The definition of “trade dispute” in the Trade Disputes Act, 1906, permits of no such limitation and, indeed, is sufficiently wide and general to include any dispute between employers and workmen provided only it is connected with the employment or non-employment, or the terms of employment or the conditions of labour of any person. Such a definition can comprehend a dispute as to whether an employer ought to have exercised his contractual right to terminate a particular employment or employments. Such dispute would clearly be”connected with” the employment of the persons in question or with their non-employment. The fact that the termination of the employment or employments in question was lawful and for good and substantial reasons appears to me to be completely irrelevant once such termination led to a dispute as to whether the employer should have acted as he did. It is true that the definition of “workmen” who may engage in a trade dispute is”all persons employed in trade or industry.” In my view “employed” here does not mean in actual present employment but rather refers to the occupation or way of life of those who are to be regarded as “workmen.” Any other meaning could have the effect of withdrawing the protection of the Act from workmen by the simple device of dismissing them and this would have its maximum effect at a time of general unemployment. In Ferguson v. O’Gorman 55 Meredith J., in relation to the issue as to whether the defendants were competent to raise a trade dispute (an issue which was not involved in the hearing of the appeal in that case), said at p. 634 of the report: “A workman does not cease to be a workman because he has been dismissed and is out of employment or has been forced to take up other work.” I concur with this view. I have also had regard to the decisions in R. v. National Arbitration Tribunals 56 and Wilkinson v. Barking Corporation. 57 For these reasons I feel that the second submission put forward in support of this ground of appeal also fails.
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The final ground of appeal was to the effect that the picketing of the plaintiffs’ premises did not qualify for protection under s. 2 of the Act of 1906 because it was not done for any of the purposes set out in the section. In the course of the argument particular emphasis was laid on the use of the word “merely” in the section, and it was suggested that in this case the motive behind the picketing was to prevent the winding up of the plaintiffs’ operations and the consequent mothballing of the machinery. Reference was made to the judgment of Mr. Justice Henchy in Becton Dickinson v. Lee 59 as indicating the importance to be attached to the word”merely.” It seems to me that in this argument there is some confusion between the motive or reason for an action and the purpose or object to be obtained from the action if taken. First of all, the action which is protected by s. 2 of the Act of 1906 must be in contemplation or furtherance of a trade dispute. What motives inspire this trade dispute do not arise. If in furtherance of the dispute it is decided to picket, again the motive for such decision is irrelevant. What is relevant and, indeed, crucial is that those who attend to picket do so only for one or more of the purposes permitted by the section. If, for example, they picket in order to frighten or to intimidate, as may be established by the manner of picketing or the numbers involved, then such would not be lawful under the section. In this case it seems clear that the defendants were opposed at all times to the closing of the plant and to the conclusion of any orderly arrangement or settlement with the plaintiffs. Originally this was their dominant aim and this, of course, they failed to achieve.
However, the evidence suggests that the defendants’ attitude eventually hardened into a bid to secure employment in the post-closure operations being carried on in the plant in the removal of raw materials, the mothballing of machinery and the general security arrangements. The evidence shows that it was for this purpose that they conducted a sit-in on the premises and later a picket which is now under consideration. I am satisfied on the evidence that this picket is acting in furtherance of their disputed claim to employment. I am equally satisfied on the evidence that it merely has as its purpose the matters set out in s. 2 of the Act of 1906. For these reasons this ground of appeal also fails.
The result, in my view, is that this appeal by the plaintiffs fails and that the plaintiffs’ action should be dismissed.
This case highlights the extent to which immunity for picketing is given by statute to small minorities of workmen regardless of the wishes of their fellow workmen, including their fellow trade unionists, and irrespective of how the picketing is calculated to damage the particular trade or industry or to conflict with the common good. Whether the degree of immunity for picketing granted by the law should be put on a more rational and just basis is something that might well merit consideration by those charged with the framing and enactment of our laws.”
…”The plaintiffs argued that there is not a “trade dispute,” as defined in s. 5, sub-s. 3, of the Act of 1906, between the defendants and them because a trade dispute must relate to the employment or non-employment or the terms of employment of the defendants. They say that there cannot be a trade dispute as the trial judge found that the defendants had been validly dismissed. The definition of “trade dispute” in s. 5, sub-s. 3, of the Act of 1906 is “any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person” and the word “workmen” is defined as “all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises.” The Act of 1906 was introduced to redeem an election pledge of the Liberal Party to overrule the decision of the House of Lords in Taff Vale Railway v. Amalgamated Society of Railway Servants 61, and there are many indications in it that it was hurriedly drafted and that its wording did not receive adequate consideration. Section 2 of the Act of 1906 authorises peaceful picketing and those who do this are not usually employed by anyone: in many cases the picket takes place because those picketing have been dismissed. I think that the word “employed” in the definition of “workmen” means”engaged” and that the fact that those picketing have been validly dismissed does not have the consequence that there is not a trade dispute between the employers and them.
All the reported authorities except one support the view that an employee who has been validly dismissed is a workman for the purposes of the Act of 1906. In Ferguson v. O’Gorman 62 Meredith J., who was then a judge of the High Court, said at p. 634 of the report: “A workman does not cease to be a workman because he has been dismissed and is out of employment or has been forced to take up other work.” When giving the advice of the Privy Council in Bird v. O’Neal 63 Lord Tucker said at p. 925 of the report: “Their Lordships also agree with the trial judge’s rejection of the submission that the lawful dismissal of a workman cannot be the subject of a trade dispute.” In Quigley v. Beirne 64 Dixon J. decided in the High Court that there was not a trade dispute because the employees had been lawfully dismissed but this Court reversed his judgment and held that there was although the men whose dismissal was the cause of the dispute were not employed by the employer. The only authority which supports the plaintiffs’ argument is the passage in the judgment of Overend J. in Doran v. Lennon 65 which is quoted66 in the judgment of the Chief Justice. In my opinion the passage and, indeed, the decision itself were wrong and should not now be followed. Accordingly, I reject the argument that there was not a trade dispute because the defendants had been lawfully dismissed from their employment.
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The plaintiffs’ next contention was that the picketing was not protected by s. 2 of the Act of 1906 because the predominant motive of those picketing was not to obtain or communicate information or to persuade any person to work or abstain from working but was to compel the plaintiffs to re-open the factory. [The judge referred to the provisions72 of s. 2, sub-s. 1, of the Act of 1906 and continued] This section has presented judges with many difficulties of interpretation; for example, what is the force of the word “merely”? If an employer dismisses all his staff without notice and they picket the premises with the predominant motive of being reinstated, I think everyone with or without a legal training would regard such a dispute as a trade dispute and would think that the employees were entitled to picket. Yet, if the predominant motive must be to peacefully obtain or communicate information or to peacefully persuade any person to work or abstain from working, the picket would not be protected by s. 2 of the Act of 1906 for the predominant motive would be the reinstatement of the employees. The power of a picket comes from the refusal of workmen employed by other employers, or the fellow employees of those picketing, to pass it unless they are directed to do so by their unions. It is thus an immensely powerful weapon which closes the businesses of those against whom it is used.
I think that s. 2 of the Act of 1906 is not dealing with the predominant motive of those picketing but with the aim to be achieved by the picketing. If the section had the meaning contended for by the plaintiffs it would have read: “It shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute to attend at or near a house or place where a person resides or works or carries on business or happens to be, for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.” The repetition of the word “attend” in the words “if they so attend” shows that the industrial weapon of picketing must be used for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working. It is not the predominant motive of those picketing which is relevant but the aim of the attending at or near a premises. In this case the purpose of attending as a picket at East Wall was and is to persuade peacefully persons not to work. While this may seem a very fine distinction, it is the only interpretation which gives meaning to the repetition of the word “attend” in the section. The purpose of those picketing is not relevant to any question under s. 2 of the Act of 1906: what is to be looked at is the aim of attending at or near the premises.
We were referred to the decision of the House of Lords in Hunt v.Broome 73 but that case is of no assistance. In it the question was whether a person, who was a member of a picket, committed a criminal offence under the Highways Act, 1959, when in the course of picketing he stood in front of a lorry in order to persuade its driver not to go into a factory which was being picketed. The argument on behalf of the accused was that his right to persuade a person to work or abstain from working would be negatived if he could not speak to the lorry driver. That question has no relevance to this case.
It is singularly unfortunate that no questions whatever were directed to those members of the picket who gave evidence as to their motives and this Court must act on its conclusions drawn from the evidence given. It is admitted that the picket is peaceful and, in my opinion, those attending as a picket are doing so for the purpose of informing others that they are in dispute with the plaintiffs and persuading persons not to work with or for the plaintiffs.
Another argument advanced related to the effect of the provisions74 of s. 11, sub-s. 1, of the Trade Union Act, 1941. This Act was passed to provide for the licensing of bodies carrying on negotiations for fixing wages or other conditions of employment and to provide for the establishment of a tribunal which was to have power to restrict the rights of organising trade unions. This latter purpose, which was sought to be achieved by Part III of the Act, has been held by this Court to be unconstitutional: see National Union of Railwaymen v. Sullivan. 75 The plaintiffs in this case argued that the meaning of the section was that persons could picket only if they represented authorised trade unions or were members or officials of one of them and were authorised by them to picket. This would mean that the section would have to be read: “and the members and officials of such trade unions as such.” They also argued that the section was an implied repeal of the words “acting on their own behalf” in s. 2 of the Act of 1906. I do not accept either of these contentions. I think that the effect of s. 11 of the Act of 1941 is to confine the immunities given by ss. 2, 3 and 4 of the Act of 1906 to authorised trade unions and their officials and members. Membership of an authorised trade union is essential if the picket is to be lawful. Those who are not members of an authorised trade union cannot picket. As all the defendants are members of the union, s. 11 of the Act of 1941 does not make it unlawful for them to picket. Therefore, it is unnecessary to consider whether s. 11 is repugnant to the Constitution and I expressly reserve this point for future consideration.
A faint-hearted attempt was made to invoke the principle decided in the Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2). 76 The argument was that the majority of the members of the unions have a right to have the agreement implemented and that the defendants who are a minority are interfering with this right and, therefore, interfering with the right of association of the majority. The short answer is that the right of the majority of the union employed by the plaintiffs was to receive the sums provided for in the six-point agreement. The evidence shows that they have received these payments and, therefore, their rights are not interfered with in any way.
It follows, in my opinion, that this appeal fails and should be dismissed”
Express Newspapers Ltd v McShane
[1980] AC 672
Lord Diplock
‘Given the existence of a trade dispute (the test of which, though broad, is nevertheless objective . . ), this makes the test of whether an act was done ‘in . . furtherance of’ it a purely subjective one. If the party who does the act honestly thinks at the time he does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he is protected by the section. I say ‘may’ rather than ‘will’ help, for it is in the nature of industrial action that success in achieving its objectives cannot be confidently predicted. Also there is nothing in the section that requires that there should be any proportionality between on the one hand the extent to which the act is likely to, or be capable of, increasing the ‘industrial muscle’ of one side to the dispute, and on the other hand the damage caused to the victim of the act which, but for the section, would have been tortious. The doer of the act may know full well that it cannot have more than a minor effect in bringing the trade dispute to the successful outcome that he favours, but nevertheless is bound to cause disastrous loss to the victim, who may be a stranger to the dispute and with no interest in its outcome. The act is none the less entitled to immunity under the section.’
Lord Scarman
The words, ‘An act done by a person in contemplation or furtherance of a trade dispute’ seem to me, in their natural and ordinary meaning, to refer to the person’s purpose, his state of mind. The Court must satisfy itself that it was his purpose, and, before reaching its decision, will test his evidence by investigating all the circumstances and applying the usual tests of credibility: that is to say, it will ask itself whether a reasonable man could have thought that what he was doing would support his side of the dispute, or whether the link between his actions and his purpose was so tenuous that his evidence is not to be believed. But, at the end of the day, the question for the Court is simply: is the defendant to be believed when he says that he acted in contemplation or in furtherance of a trade dispute?’ He wentto describe the test as subjective: ‘It follows, therefore, that once it is shown that a trade dispute exists, the person who acts, but not the court, is the judge of whether his acts will further the dispute. If he is acting honestly, Parliament leaves to him the choice of what to do. I confess that I am relieved to find that this is the law. It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further, or advance, that party’s side of the dispute . . It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of a backseat driver in trade disputes.’
Becton, Dickinson Ltd. v. Lee
[1973] I.R. 1
Walsh J. Supreme Court
“Mr. Justice McLoughlin rejected the defendants’ contention that there was a trade dispute within the meaning of s. 5, sub-s. 3, of the Trade Disputes Act, 1906, between the defendants and the plaintiffs. He held that the requirement as to membership of NEETU was not “just a term of the employment; it was a condition precedent to obtaining the employment which was agreed to by the employees, and it is conceded that it was binding on the employees.”He continued as follows:” “In the circumstances, I think, the employees are precluded from raising this contention as a trade dispute. In effect, by agreeing to this condition the employees agreed not to raise it as a trade dispute. To decide otherwise would involve this anomaly: the circumstances which would entitle the plaintiffs to bring an action for breach of contract against the defendant employees would justify them in claiming the protection of the Act for what would otherwise be unlawful watching and besetting.” He also held that the defendants were endeavouring, in effect, to force the plaintiffs to break their contract with NEETU. He also held that a “recognition dispute” was not a trade dispute within the definition in s. 5, sub-s. 3, of the Act of 1906 and that that was “all the more so when the recognition claimed is a fundamental breach of the contract of employment in which the recognition is claimed.” Mr. Justice McLoughlin also held that the plaintiffs had not been guilty of any breach of the constitutional rights of the defendant employees to join the union of their choice because, he said, the plaintiffs had done nothing to coerce the defendants in any way. He also went on to hold that the picketing itself was peaceful picketing.
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The first question which arises for decision is whether a recognition dispute is capable of being a trade dispute within the meaning50 of s. 5 of the Act of 1906. It is true that in the present case the plaintiffs refused to recognise AEF in as much as they refused to treat with that union as representing any of the men in their employment who were members of it and refused to recognise the designation by AEF of the fifth defendant as a shop-steward. “Recognition” means that the members of a union working in a particular firm desire that their union should be accepted by the employers as their spokesman and their negotiating agent in respect of their terms and conditions of employment. As I pointed out in my judgment in E.I. Co. Ltd. v. Kennedy 51, there has been no decision of the courts in this country to the effect that a “recognition dispute” is a trade dispute within the definition in s. 5 of the Act of 1906. I did not in any way suggest that it could not be so and the only relevance of referring to it in that particular case was because of the considerations which apply in the granting or refusal of an interlocutory injunction. I observed then that there had been no decision by the courts of this country on whether the definition of “trade dispute” in s. 5 of the Act of 1906 “embraces either (a) a union’s claim to be recognised as the sole representative of all the workers in a particular category of employment with an employer whether such workers are members or not, or (b) a claim by such employees as are members of a trade union to have that trade union accepted as the spokesman and representative of such member employees in any negotiations on questions of terms of employment or conditions of employment whether or not there is currently a dispute between the members and the employer under either of those headings.” I should draw attention to the words used in that case by my colleague Mr. Justice FitzGerald at p. 101 of the report:” “The defendants contend that the claim by the workers to be represented by the union in negotiations and its refusal by the employers constitute a ‘trade dispute’. This claim is contested by the plaintiffs on the ground that such a claim does not come within the definition of a trade dispute in the Act of 1906. It is conceded by the plaintiffs’ counsel that, if such a condition was expressly included in a contract of employment, it would form the basis of a trade dispute. It would appear to me that, if it could be expressly included, it can equally be implied in a contract of employment.
The plaintiffs contend that, on the basis of the passage from the judgment of Kingsmill Moore J. in Sherriff v. McMullan 52 at page 247 of the report, the connection between the dispute and the terms of employment must be ‘direct’ and that, in the case of a recognition dispute, this connection does not exist. I have considerable doubt as to whether this contention is supportable.”
It is necessary to examine the context in which this observation was made by Kingsmill Moore J. in the High Court in Sherriff’s Case. 52 The trade union in that case did not have any members at the time in question in the employment of the plaintiff because the employees who had been members had already resigned from the union. The union claimed that the resignations were ineffective and sought to carry on a dispute on behalf of the alleged employee members. In fact the resignations from the union were held to be effective, and therefore the union was not acting for anybody as it did not claim to carry on the dispute on behalf of its other members who were not in the employment of the plaintiff but only on behalf of those in the employment of the plaintiff. The members who had resigned from the union had undoubtedly been influenced to do so by the plaintiff employer; but it was held by Kingsmill Moore J. on those facts that, as the union was not acting for any of its members, the union’s fight about the right of an employer to influence his men to leave the union was not sufficient to create a trade dispute: it is in that context that at p. 247 of the report Kingsmill Moore J. used the words:” “I think the connection with the terms of employment or conditions of labour, to which the definition section refers, must be something much more direct or immediate than any connection which is here suggested. The law is not disposed to attach legal consequences to such remote causes and I cannot hold that there was any trade dispute in existence on the 20th June.”
In my view, if workmen designate their trade union to be their spokesman and representative in any negotiations on questions of terms or conditions of employment, whether or not there are currently negotiations or a dispute on these topics, they are doing something which is connected with their employment and which they are endeavouring to make a term of their employment; if an employer refuses to treat with their designated representative or spokesman, then that refusal can constitute a dispute which is connected with the employment or the terms of the employment of the workman and, therefore, can be a trade dispute within the meaning of s. 5 of the Act of 1906.
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Counsel for the plaintiffs submitted that the defendant employees, in striking, were in breach of contract; that is to say, that they were in breach of contract in withdrawing their labour until such time as the term of employment to which they had agreed had been waived or altered to their satisfaction. Every refusal on the part of a workman or any employee to work in accordance with the terms of his contract is itself a breach of contract and to that extent, in so far as that constitutes a strike, every strike amounts to a breach of contract. A refusal to work in accordance with the terms of the contract does not in itself discharge the contract unless the other party to the contract chooses to treat it as so discharged. A breach of contract is unlawful in the sense that it is actionable as such, although it does not constitute a tort and only constitutes a criminal offence in the exceptional instances set out in s. 4 of the Conspiracy and Protection of Property Act, 1875, as extended by s. 110 of the Electricity (Supply) Act, 1927. The plaintiffs have submitted that the strike in the present case was in breach of contract and was therefore unlawful and that, because of such unlawfulness, it is not given the protection afforded by ss. 1, 2 or 3 of the Act of 1906. In support of this submission they have relied upon the decisions in Cooper v. Millea 54, Riordan v. Butler 55, Rookesv. Barnard 56 and J. T. Stratford & Son Ltd. v. Lindley. 57
It is true that s. 3 of the Act of 1906, while giving immunity from action for procuring a breach of contract does not give like immunity for the breach itself. It is also true that s. 1 of the Act of 1906 excluded civil liability in cases where an act otherwise lawful would become unlawful by reason of the existence of an agreement or concerted action. In the present case it is argued on behalf of the plaintiffs, and in my view correctly, that if the strike is in breach of contract then the protection afforded by s. 1 of the Act of 1906 is not available to the defendants because a breach of contract is actionable if committed by one person. Likewise, they are correct in their submission that, if the defendants have acted in breach of contract, those who have done so are not given immunity from action under s. 3 of the Act of 1906. That immediately focuses attention on the position of the sixth defendant. He had no contract with the plaintiffs and was not employed by them and, in my view, he is entitled to rely upon the protection afforded by s. 3 of the Act because his activity, in so far as there was a breach of contract involved, can only have been to have procured that breach and that is expressly protected by s. 3 of the Act.
That brings me to examine what was decided in Cooperv. Millea 54 which has been cited as an authority for the proposition that “a strike in breach of contract is unlawful and a threat or pre-intimation of unlawful action constitutes illegal means.” These words occur at p. 758
of the report in Cooper v. Millea 58 in the course of the judgment of Gavan Duffy J. and the case has been accepted as containing a statement of principle to that effect; it was relied upon in the subsequent decision of Riordan v. Butler 59 and in Rookes v. Barnard 60 as being authority for that statement of principle. As was pointed out in the speech of Lord Evershed in Rookes v. Barnard 60at p. 1185 of the report, Gavan Duffy J. was incorrect in attributing to Lord Dunedin in Sorrell v. Smith 61 a statement to like effect. What Lord Dunedin said was as follows:” “Expressing the matter in my own words, I would say that a threat is a pre-intimation of proposed action of some sort. That action must be either per se a legal action or an illegal, i.e., a tortious action. If the threat used to effect some purpose is of the first kind, it gives no ground for legal proceeding; if of the second, it falls within the description of illegal means, and the right to sue of the person injured is established.” Lord Dunedin made no mention of threat of a breach of contract. The second thing to note about Cooper v. Millea 58 is that the case was apparently regarded by the learned trial judge as being a case where the defendants were threatening to break their own contract. The threat involved in that case was the threat of an immediate strike which, on the face of it, would appear to involve a breach of contract on the part of whoever was going to go on strike. But the defendants, in the words of the trial judge at p. 757 of the report, were officials of a local branch of the union and they had called upon the local superintendent of the railway company as a deputation to inform him that there would be an immediate withdrawal of labour by the members of that branch of the union. Leaving aside the question of whether or not they had authority to do that, and it appears to me to be immaterial in the context of the case, it seems to me that the action complained of fell clearly within s. 3 of the Act of 1906 and that what they were doing was threatening to induce a breach of contract on the part of the workers in question. I am not satisfied that Cooper v. Millea 58 was correctly decided having regard to its facts; it was in reality an action against the defendants for threatening to induce a breach of contract but was decided as if they had been guilty of a threat to break a contract, which is not protected by s. 3 of the Act of 1906.
The next case, Riordan v. Butler 62, is much more to the point. In that case an employer had broken his contract with one of his workmen, who was the plaintiff, by dismissing him without notice because of the threat made to the employer by the defendants to cease work immediately in breach of their contract if the plaintiff was allowed to work. The defendants did not in fact break their contracts as their threat was effective, but they had undoubtedly threatened to break their contracts to produce the result which they wanted to produce. In that case the defendants’ threat was, in the words of O’Byrne J. at p. 353 of the report, that they would “walk off the job, that they would cease work immediately in breach of their contract.” Mr. Justice O’Byrne held that to be unlawful means and he followed the statement of principle enunciated by Gavan Duffy J. in Cooper v. Millea. 63 He did point out, however, that the defendants could have arrived at substantially the same result if they had given a proper notice to the employer and that, if they had done so, there would have been no cause of action against them. He seems to have had in mind that they would give notice of termination of their contract of employment which, in that case, would have been a week’s notice.
The case of Rookes v. Barnard 64 was also the case of a threat to strike in breach of contract and it was treated as such by the courts concerned, although one of the three defendants was a trade-union official acting as such and was not under contract and could not have threatened to break his own contract since he did not have one. His position does not appear to have been distinguished from the other two defendants who were under contract, although the case was fought on the question of whether or not protection was afforded by s. 3 of the Act of 1906. There are many points raised in that case which need not concern this Court in the present case but it did establish, in so far as England is concerned, that the tort of intimidation could be committed by threatening to break a contract. It is also abundantly clear, of course, that the tort of intimidation cannot be committed if the threat is ineffective; if the threat is carried out and the desired result is not procured, there has been no tort of intimidation. Therefore, before the tort of intimidation can be established in such a case, it must be shown that the threat involved was of a coercive nature and that it succeeded. Furthermore, as was made clear in J. T. Stratford & Son Ltd. v. Lindley 65, there is an important distinction between a threat to break a contract and a threat to procure a breach of contract of employment by another person; the latter is expressly protected by s. 3 of the Act of 1906. The result in English law would appear to be that a workman can be guilty of the tort of intimidation by threatening to break his contract of employment where the employer gives in to some demand, but that a union official or some such person will not be guilty of the tort of intimidation by demanding the very same result from the employer by threatening to induce the employer’s workmen to break their contracts. The plaintiffs in the present case relied upon Lindley’s Case 65in another context which I will deal with later.
It appears to me to be unnecessary for this Court to express any view on the question of whether a strike in breach of contract can be a trade dispute within the meaning of s. 5, sub-s. 3, of the Act of 1906 or whether, even if it is, it is entitled to the protection afforded by s. 2 of the Act of 1906, unless on the facts the Court is satisfied that the strike complained of in the present case was in breach of contract.
As I have pointed out earlier in this judgment, a contract is not discharged by unilateral breach of it unless the contract so provides or unless the other party chooses, and is able, to terminate it upon that ground. Mr. Justice O’Byrne in Riordan v. Butler 66, at p. 353 of the report, indicated that if notice terminating the contract of employment had been given the result which the defendants in that case had desired to achieve could have been achieved lawfully. I do not think that O’Byrne J. is to be taken as stating that the only way in which that could have been done was to have terminated the contract; I think his mind was really running on the question of adequate notice being given before such action was taken. In Rookes v. Barnard 67, Lord Evershed stated at p. 1180 of the report:” “. . . it has long been recognised that strike action or threats of strike action (however those terms be interpreted”and I have in mind what fell from Donovan L.J. in his judgment in the Court of Appeal) in the case of a trade dispute do not involve any wrongful action on the part of the employees, whose service contracts are not regarded as being or intended to be thereby terminated. So much was stated by Lord Watson in his speech in Allen v. Flood 68 and has, as I believe, been since consistently followed ” see e.g., per Lord Sterndale M.R. in White v. Riley. 69” The words of Donovan L.J., to which Lord Evershed was referring, are70 as follows:” “There can be few strikes which do not involve a breach of contract by the strikers. Until a proper notice is given to terminate their contract of service, and the notice has expired, they remain liable under its terms to perform their bargain. It would, however, be affectation not to recognise that, in the majority of strikes, no such notice to terminate the contract is either given or expected. The strikers do not want to give up their job; they simply want to be paid more for it or to secure some other advantage in connection with it. The employer does not want to lose his labour force; he simply wants to resist the claim. Not till the strike has lasted some time, and no settlement is in sight, does one usually read that the employers have given notice that unless the men return to work their contracts will be terminated, and they will be dismissed.”
……..In Rookes v. Barnard 72 at p. 1204 of the report, Lord Devlin said:” “As Donovan L.J. said in the Court of Appeal, the object of the notice was not to terminate the contract either before or after the expiry of seven days. The object was to break the contract by withholding labour but keeping the contract alive for as long as the employers would tolerate the breach without exercising their right of rescission.” When J. T. Stratford & Son Ltd. v. Lindley 73 was heard by the House of Lords, on appeal from the judgment of Lord Denning and his colleagues, nothing was said in the speeches delivered disagreeing with Lord Denning’s construction of “strike notice.”
In Morgan v. Fry 74 Lord Denning developed this point further at pp. 724-5 of the report. He posed the question of whether strike notice is a threat of a breach of contract. He pointed out that if there had been a full week’s notice by the men to terminate the employment altogether it would not have been a threat to commit a breach of a contract. Every man was entitled to terminate his contract of employment by giving a week’s notice. But in Morgan v. Fry 74 the strike notice was not a notice to terminate the employment; it was a notice that the union employees would not work with non-unionists. That, he said, “looks very like a threat of a breach of contract: and, therefore, intimidation.” Having then recited the passage, supra, from his judgment in J. T. Stratford & Co. Ltd. v. Lindley 75, he goes on to say at p. 725 of the report:””It is difficult to see the logical flaw in that argument. But there must be something wrong with it: for if that argument were correct, it would do away with the right to strike in this country. It has been held for over 60 years that workmen have a right to strike (including therein a right to say that they will not work with nonunionists) provided that they give sufficient notice beforehand: and a notice is sufficient if it is at least as long as the notice required to terminate the contract.” He went on to refer to Allen v. Flood 76 where a day’s notice was held to be long enough because the men were only employed by the day, and to White v. Riley 77 where a week’s notice was held to be sufficient. He also referred to Cooperv. Millea 78 and Riordan v. Butler 79, and he referred to the passage, supra, from the speech of Lord Evershed in Rookes v. Barnard. 80 All these led him to the conclusion that the law was that if the strike notice given is not shorter than the legal period for termination of the contract itself then it is not unlawful. Lord Denning then examined the legal basis on which a strike notice of proper length is held to be lawful, and at p. 727 of the report he said:” “I think it is this: the men can leave their employment altogether by giving a week’s notice to terminate it. That would be a strike which would be perfectly lawful. If a notice to terminate is lawful, surely a lesser notice is lawful: such as a notice that ‘we will not work alongside a non-unionist.’ After all, if the employers should retort to the men: ‘We will not accept this notice as lawful,’ the men can at once say: ‘Then we will give notice to terminate.’ The truth is that neither employer nor workmen wish to take the drastic action of termination if it can be avoided. The men do not wish to leave their work for ever. The employers do not wish to scatter their labour force to the four winds. Each side is, therefore, content to accept a ‘strike notice’ of proper length as lawful. It is an implication read into the contract by the modern law as to trade disputes. If a strike takes place, the contract of employment is not terminated. It is suspended during the strike: and revives again when the strike is over.” He went on to say that in the case in question in his opinion the defendants did not use any unlawful means to achieve their aim and that they were not guilty of intimidation because they gave “strike notice” of proper length. He held that they were not guilty of conspiracy to use unlawful means because they used none, and that they were not guilty of conspiracy to injure because they acted honestly and sincerely in what they believed to be the true interests of their members.
I would agree with the view expressed by Lord Denning in Morgan v. Fry 81 that there is to be read into every contract of employment an implied term that the service of a strike notice of a length not shorter than would be required for notice to terminate the contract would not in itself amount to notice to terminate the contract and would not in itself constitute a breach of the contract and that to take action on foot of the strike notice would likewise not be a breach of the contract. Such an implied term, of course, could not be read into a contract where there is an express provision in the contract to the contrary, or where by necessary implication a provision to the contrary must be read into the contract. The period of employment is not usually a fixed time and thus, apart from where grounds may exist for summary dismissal, each party can normally end the contract only by giving notice to terminate it. If the contract provides for a particular length of notice, then that is the one which must be given. In the absence of such express agreement or in the absence of one which may be implied by custom, the period must be that which may be implied as being a reasonable period for ending the particular contract. Thus some contracts may be legally terminated on an hour’s notice, or a day’s notice, or a week’s notice, or a month’s notice, as the case may be, depending upon the terms of the employment. Allen v. Flood 82 is an example of a case where it was held that only a day’s notice was required. Whatever may be the particular length of notice required to terminate a contract, a strike notice of equal length would be sufficient to comply with the implied term of the contract of employment as to the acceptance of strike notice.
In Rookes v. Barnard 83 there was an express provision in the contract of employment of each worker (or rather it was conceded at the trial to have been included in the contract of employment) that no strike should take place and that any dispute should be referred to arbitration. The workers concerned, because of the plaintiff’s refusal to re-join his union, gave the employer three days’ notice only that they would withdraw their labour unless within that period the plaintiff was removed from the office. It appears from the facts of the case that the workers were employed on a weekly basis and would have been entitled to receive (and, presumably, to give) a week’s notice if it was desired to terminate the contract of employment. Therefore, in the ordinary way a strike notice, if it could have been served, would have been a week’s notice; but this point did not form the basis of the speeches in the House of Lords where it was held that the tort of intimidation in that case, namely, the threat to break a contract on the part of the workers concerned formed the basis of the plaintiff’s claim for damages. The judgment in the case turned upon the term of the contract wherein the workers agreed not to strike. I take that to mean that they were not to strike during the currency of the contract. It does not appear to me that the same result might not have been procured by the defendants in that case notwithstanding the no-strike clause if, instead of serving strike notice, whatever its duration, they had served notice terminating the contract of employment itself as suggested by O’Byrne J. in Riordan v. Butler. 84 It is unnecessary for me to speculate what might have been the decision if they had taken that course but it does appear that, whatever else they might have been guilty of, they would not have been guilty of breach of contract. The case, however, is a persuasive authority for the view that where there is an express no-strike clause in a contract of employment then the service of strike notice would be a breach of the contract so long as the contract is in existence.
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In my view the provision which required the defendant employees to join NEETU and to which they agreed is notone from which it is necessarily to be implied that the workers concerned thereby agreed not to strike with reference to this term of employment. It is quite true that they would not have been given the employment if they had not agreed to join NEETU, but there can be many terms of a contract of employment which require to be accepted and agreed by the workers concerned before they are offered employment; that does not mean that, because any particular term of a contract can be shown to be one without which there would have been no employment offered, there must necessarily be implied an agreement not to strike in respect of that term. An express no-strike clause in a contract is itself such an unusual feature of a contract of employment and is such an apparent departure from the long-established right to strike that a court would be slow to imply it where it is not expressly included in the contract or where it is not a necessary implication; a court would probably only do so in cases where there was some particular provision for machinery to deal with disputes, the provision being so phrased as to give rise to the implication that it had been agreed between the parties that no other course would be adopted during the currency of the contract. To say that it must be implied, as the trial judge in this case appears to have said, because the term of the contract requiring membership of NEETU was binding on the employees is not to put matters any further than in the case of any other term of the contract which was binding on them; all terms of the contract of employment which impose obligations on employees are binding on them. I cannot accept that by agreeing to any particular condition (save, perhaps, an express no-strike condition) employees agree not to raise a condition as a trade dispute. The learned High Court judge justified this by saying:””To decide otherwise would involve this anomaly: the circumstances which would entitle the plaintiffs to bring an action for breach of contract against the defendant employees would justify them in claiming the protection of the Act for what would otherwise be unlawful watching and besetting.” With great respect to the learned trial judge, I think this is begging the question. For the reasons I have already given I am of opinion that, unless it is expressly stated to the contrary or arises by necessary implication to the contrary, a contract of employment contains an implied term permitting the employees to serve strike notice without being in breach of the contract and without terminating it.
In the present case the learned trial judge has held that the notice served was adequate and it is beyond dispute on the evidence that the notice in question was of sufficient length to terminate the contract and therefore was at least of sufficient length to serve as strike notice. As the notice was of sufficient length it is unnecessary in this case to decide whether a strike in respect of which the notice given, if any, was less than that which would be required to terminate the contract would be insufficient to create a trade dispute within the meaning of s. 5, sub-s. 3, of the Act of 1906 or, if it did create such a dispute, whether that dispute could be lawfully supported by picketing so as to confer the protection of s. 2 of the Act of 1906 upon such picketing. I expressly wish to reserve my opinion on the question of whether a withdrawal of labour in breach of contract, whether or not there is a no-strike clause in the contract, constitutes a “trade dispute” within the meaning of s. 5, sub-s. 3, of the Act of 1906, and whether picketing in furtherance of it is, or is not, lawful within the meaning of the provisions of s. 2 of the Act of 1906. In my view, that is not the present case.
The present dispute is connected with “the terms of the employment” within the meaning of s. 5, sub-s. 3, of the Act of 1906. The defendant employees intimated quite clearly that they would not work unless the plaintiffs recognised AEF as the defendant employees’ duly authorised spokesman and representative and unless the plaintiffs recognised the shop-steward who had been nominated, which in effect meant that the defendant employees wanted the existing terms of their employment varied.
Lastly, the plaintiffs urged upon the Court that the real issue in dispute was simply one of inter-union rivalry and could not therefore he a trade dispute within the meaning of the Act of 1906. In support of this they relied upon J. T. Stratford & Son Ltd. v. Lindley. 85 In that case the appellants had obtained an interlocutory injunction in the High Court which was discharged in the Court of Appeal and was re-imposed in the House of Lords. In that case it was held by the House of Lords that the respondents, who were the officers of a trade union, had not established aprima facie case that there was a trade dispute in existence or in contemplation within the meaning of s. 5, sub-s. 3, of the Act of 1906. On the facts in that case it was held that the respondents were acting only in the advancement of their union’s prestige in rivalry with another union, and that they were not acting on behalf of any workman who belonged to their union, and that there had not been at any material time a claim made by them on behalf of any workman, or a refusal of the claim. That makes the case quite different from the present case which, I think, fits exactly into the words used by Lord Pearce in Lindley’s Case 85 at p. 334 of the report where he says:” “When a union makes a genuine claim on the employers for bargaining status with a view to regulating or improving the conditions or pay of their workmen and the employers reject the claim, a trade dispute is in contemplation even though no active dispute has yet arisen . . .” In the present case the evidence established clearly beyond doubt, as found by the trial judge to be the fact, that AEF was acting on behalf of the employee-defendants who were members of AEF and that the dispute was one raised by the employees. The trial judge could not have arrived at a conclusion of law to the effect that the employee-defendants were precluded from raising the issue at all unless he had first found that they did raise the dispute. In my view this submission of the plaintiffs must also fail.
The constitutional issues raised in this appeal do not now fall to be decided. For the purpose of the decision which I have arrived at on the question of whether or not the defendants have a right to claim the protection of the Act of 1906, I have assumed that the term in the contract of employment with regard to trade-union membership is not one which would be held to be void. It is not necessary to express any opinion upon the question of how far, or in what circumstances, a person can contract out of a constitutional right; or to what extent such an agreement would be enforced.
For the reasons I have given I am of opinion that there is a trade dispute between the defendants and the plaintiffs and that s. 2 of the Act of 1906 protects the picketing. In my view, the appeal should be allowed and the order of the High Court should be discharged in full.
FITZGERALD J.:
” I have had the benefit of reading the judgment about to be delivered by Mr. Justice Henchy and I agree with it. The ultra-liberal interpretation of the Trade Disputes Act, 1906, coupled with the failure of the authorities to enforce the law, has led to a public misconception and belief that a right to protest carries with it a right to picket. This is not the law.
The immunity provided by s. 2 of the Act of 1906 depends upon two factors: first, that there must be a trade dispute and, secondly, that the pickets must be merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or to abstain from working.
In my opinion, even if it is assumed that the”recognition” dispute falls within the definition of “trade dispute”, the purpose of the picket in the present case was to coerce the plaintiffs to break their contracts with the Irish Transport and General Workers’ Union and with the National Engineering and Electrical Trade Union. That purpose is not within the limits permitted by s. 2 of the Act of 1906. I am consequently of the opinion that the picket was illegal, that the injunction was properly granted, and that this appeal should be dismissed.
HENCHY J.:
“
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The trade dispute which is relied on by the defendants to justify the picketing is the plaintiffs’ failure to concede the defendants’ claim to be entitled to employment in the Dun Laoghaire plant without having to leave their own union (AEF) and to join the designated union. The plaintiffs’ reply is that, if they concede that claim, they will be in breach of their contract with ITGWU and NEETU to employ only members of the latter unions. That this would be the result of conceding the defendants’ claim was made clear by the plaintiffs in a letter of the 9th July, 1970, before strike notice was served. In effect, therefore, the defendants say to the plaintiff:” “Break your contract with ITGWU and NEETU and employ us who are members of AEF.”
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Since the decision of the House of Lords in Conway v.Wade 86 it has not been doubted, as far as I am aware, that the existence of a statutory trade dispute is a question of fact, to be decided by the jury when the case is one being tried with a jury. This Court has not been referred to any case where a party relying on a trade dispute to justify industrial action was debarred from doing so because of his prior conduct. On the contrary, some of the cases cited are ones where a trade dispute was held to exist notwithstanding that it was based on a wilful breach of a basic condition of the employment: see, for example, Square Grip Reinforcement Co. Ltd. v. MacDonald. 87 It seems clear from the authorities that, if the facts fall within the statutory definition of a trade dispute, the person relying on the trade dispute is entitled to do so. Section 5, sub-s. 3, of the Act of 1906 defines a trade dispute as “any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person.” Once a dispute is between the parties specified and is connected with any of the matters specified, it ranks as a trade dispute for the purposes of the Act. It would be an unwarranted restriction of the scope of the words “any dispute” to read them as connoting only certain kinds of disputes by invoking estoppel by conduct, or waiver, or rules for the interpretation of contracts. The defendants come within the statutory definition of workmen; they fell into dispute with their employers; and the dispute is connected with their employment or non-employment, or with the terms of their employment. Accordingly, in my opinion, they are entitled to say that a statutory trade dispute exists.
The next question that arises is whether the picketing done by the defendants in furtherance of that trade dispute is lawful. Section 2 of the Act of 1906 says that it is lawful only if it is “merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.”The word “merely” is not without significance. It is a fact of legislative history that the purpose of the section was to remove peaceful picketing of the kind mentioned from the ambit of the criminal liability arising under s. 7 of the Conspiracy and Protection of Property Act, 1875. As Citrine’s Trade Union Law (3rd ed., p. 557) says of the section:” “It clarifies the unsatisfactory state in which the law was left by the conflicting decisions of the Court of Appeal in Lyons v. Wilkins 88, in which peaceful picketing was held to be unlawful, and Ward, Lock and Co. v.Operative Printers’ Assistants’ Society 89, where it was held to be lawful. Apart from that, the section appears to have no great effect. With the exception of the user of the public highway, and possibly some slight modification of the law of nuisance, it confers no rights and grants no immunities that are not already available to the citizen at all times.” If, therefore, the picketing is done for a purpose other than peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working, the section cannot be relied on by the picketers as granting them immunity. One then has to see if the picketing is lawful under some other statutory provision or at common law.
It is clear in the present case that, while the picketing was done for the purpose of communicating information and persuading people to abstain from working, the picketing also set out as its direct purpose to induce the plaintiffs to break their contract with ITGWU and NEETU by employing persons other than members of those unions. The trial judge in effect found that as a fact, and counsel for the defendants have not submitted in this Court that he was wrong in so finding. If there were not the latter purpose of inducing the plaintiffs to break their contract with ITGWU and NEETU the picketing would be rendered lawful by s. 2 of the Act of 1906. Does the added purpose of seeking to induce the plaintiffs to break their prior contract with ITGWU and NEETU make the picketing illegal?
The position at common law has been stated in Salmond on the Law of Torts (15th ed. at p. 495) as follows:””Intentionally and without lawful justification to induce or procure anyone to break a contract made by him with another is a tort actionable at the suit of that other, if damage has resulted to him.” The necessary ingredients of all actionable interference with contractual rights are then given for six types of cases, the first of which is stated at p. 498:” “When a third party, with knowledge of the contract and the intent to procure its breach, directly persuades or procures or induces one of the parties to that contract to break it. This is the most obvious form of actionable interference and is well illustrated by Lumley v. Gye 90 itself.” The present case falls into that class if the picketing was done without justification. In D. C. Thomson and Co. Ltd. v. Deakin 91 Morris L. J. said:””The tort is committed if a person without justification knowingly and intentionally interferes with a contract between two other persons. There must, therefore, be knowledge of the existence of contractual relations between others and the intentional commission, without justification, of some act which interferes with those contractual relations so as to bring about or procure or induce a breach resulting in damage.” In the context of industrial action by workers, the requirements for the tort have been stated with greater particularity by Lord Denning M.R. in Torquay Hotel Co. Ltd. v. Cousins 92 where he said:” “The principle can be subdivided into three elements: first, there must be interference in the execution of a contract. The interference is not confined to the procurement of a breachof contract. It extends to a case where a third personprevents or hinders one party from performing his contract, even though it be not a breach. Second, the interference must be deliberate. The person must know of the contract or, at any rate, turn a blind eye to it and intend to interfere with it: see Emerald Construction Co. v.Lowthian. 93 Third, the interference must be direct.Indirect interference will not do.”
All these requirements are to be found in the present case. The defendants picketed, in the full knowledge of the existence of the contract between the plaintiffs and ITGWU and NEETU, with the avowed purpose of directly preventing or hindering the plaintiffs in carrying out their part of the contract. The defendants must be credited with the knowledge that, if the picketing were successful in inducing the plaintiffs to break their contract, the plaintiffs would be liable for damages for breach of contract or be subjected to an injunction restraining them from committing a breach of the negative covenant in the contract not to employ persons other than members of ITGWU or NEETU. Therefore, the picketing would be unlawful at common law and, since its purpose was not one permitted by s. 2 of the Act of 1906, that section cannot give it legality. “Picketing, whether under the section or outside it, will become unlawful if either the object or the means is unlawful. Thus, if the object of the picketing is to induce breaches of contract, other than contracts of employment in contemplation or furtherance of a trade dispute, it will be unlawful””Citrine’s Trade Union Law (3rd ed., p. 563). That is to say, not alone is the picketing in the present case outside the protection of s. 2 of the Act of 1906 but it also fails to be exempt under s. 3 which would make it immune from action on the ground only that it induced the breach of a contract of employment. The contract between the plaintiffs, ITGWU and NEETU, the breach of which the defendants set out to cause was one that dealt with employment but it was not a contract of employment, and so s. 3 of the Act of 1906 cannot make the picketing legal: see J. T. Stratford & Son Ltd. v.Lindley 94 and Emerald Construction Co. Ltd. v. Lowthian. 95For these reasons I am led to the conclusion that the picketing was unlawful and should be restrained by injunction.
The conclusion that the picketing was unlawful has been reached on the assumption that the contract between the plaintiffs, ITGWU and NEETU, and the contracts of employment of the first five defendants, are not invalid on the grounds of incompatibility with the Constitution of Ireland. It is necessary, therefore, to consider the submission of counsel for the defendants that these contracts are invalid on the ground that they infringe the right of the citizens to form unions as guaranteed by Article 40, s. 6, of the Constitution. In support of that submission, reliance was placed on the decisions of the Supreme Court in National Union of Railwaymen v. Sullivan 96 and Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2). 97 I do not think, however, that the rationale of those decisions assists the submission. What those cases decided was that when workers are sought to be compelled”in the former case by statute and in the latter by means of a picket”to join a particular union regardless of their wishes, such compulsion amounts to a denial of the worker’s constitutionally-guaranteed right to choose whom he shall join in union with. That is radically different from the present case. Here the matter is one of contract and there is no compulsion or coercion, and no interference with the citizen’s free choice. All that is provided is that, if the workman enters into employment with a particular employer, he must be a member of a designated union. That may mean, as apparently it does in the present case, that the workman cannot remain a member of another union. If that be the result, then it stems from the citizen’s free choice. Not alone is it not in derogation of his constitutional right, it is in exercise of that very right. Article 40, s. 6, sub-s. 1, of the Constitution guarantees liberty for the exercise of the right of the citizens to form associations and unions. One has only to look at the society in which we live to see the many classes of people who by contract have limited, in one degree or another, their choice of association or union. To hold that such limitations are repugnant to the Constitution would be to impute to the People, in enacting the Constitution, an intention to effect a revolutionary change in the structure of society for which the wording of Article 40, s. 6, of the Constitution provides no warrant. The question whether it is permissible under the Constitution to ensure by contract that a man must remain indefinitely a member of a particular union does not arise for decision in this case. All I find necessary to decide is that Article 40, s. 6, is no impediment to providing by contract that membership of a particular union is to be a prerequisite for a particular employment.
Being of opinion that the injunction restraining the defendants from picketing was correctly granted, I would dismiss this appeal.
Daru Blocklaying Ltd. v. Building and Allied Trades Union
[2002] 2 I.R. 619
Kelly J. H.C.
The plaintiffs’ submissions
The plaintiffs submit that they are entitled to injunctive relief on the following basis.
1. None of the individual defendants has ever been in the employment of the plaintiffs. They are independent contractors and, therefore, do not fall within the protection afforded by s. 11(1) of the Industrial Relations Act, 1990. I have already held that there is an issue to be tried as to the facts which existed when the second and third defendants came into a contractual relationship with the first plaintiff. Equally, I am of the view that there is a serious issue to be tried as to the legal consequences which will flow from the facts as so found. The arguments which have been made by counsel for the plaintiffs and the defendants as to whether or not protection applies in these circumstances are virtually identical to the arguments which were made to Laffoy J. by the same counsel in G. & T. Crampton Ltd. v. Building & Allied Trades Unions (Unreported, High Court, 20th November, 1997). In the course of her judgment at p. 9 she said:-
“I do not propose to rehearse in detail the very comprehensive arguments advanced by counsel on behalf of the defendants for the proposition that the picketers are entitled to the protection of s. 11(1) and by counsel for the plaintiff for the proposition that they are not so entitled. Suffice it to say that the nub of counsel for the plaintiff’s argument is that, as regards the union member picketers, the plaintiff is not ‘their employer’ in the context in which that expression is used in s. 11(1), whereas counsel for the defendants contends that it is, having regard to the definition of employer in s. 8 of the Act of 1990 which defines that word as meaning inter alia ‘a person for whom one of more workers seek to work having previously worked for that person’. On the evidence before me, I have no doubt that the plaintiff’s contention that the picketers are not entitled to the protection of s. 11 raises a fair case to be tried between the parties.”
Precisely the same reasoning applies here and I so hold.
2. Even if there is an entitlement to picket it has been lost as a result of the conduct on the picket lines. There is a huge conflict of fact as to what occurred and, as I have already indicated, I am quite satisfied that there is a serious issue to be tried in that regard. Likewise, there is a serious issue to be tried as to the legal consequences which flow should it be that this picketing was not carried out peacefully or for the statutory purposes. Counsel for the plaintiffs says that once that is shown, the right to picket is lost. Counsel for the defendants argues that, if there has been unlawful picketing, the only injunction that ought to issue is one which will enjoin the unlawful conduct, but that peaceful picketing should be permitted.
3. Because the picketing is in breach of contract i.e. the registered agreement, it should be enjoined. In this regard, it seems to me, that there is a serious issue to be tried as to the status of the registered agreements, one with the other, and their legal effects in the context of industrial action which is in the form of a picket which is, allegedly, carried on in breach of an express no strike clause.
The apparently differing views between, on the one hand, the Supreme Court in Becton, Dickinson Ltd. v. Lee [1973] I.R. 1, Kenny J. in the High Court in Irish Biscuits Ltd. v. Miley (Irish Times 3rd April, 1972) followed by him in Merchants Warehousing Company v. McGrath (Irish Times 27th April, 1974) and in Waltham Electronics Ireland Ltd. v. Doyle (Irish Times 15th November, 1974) and the views of O’Higgins J. in Kire Manufacturing Company Ltd. v. O’Leary (1986) 5 J.I.S.L.L. 152 eloquently demonstrate the existence of a serious issue for trial concerning this argument.
4. The plaintiffs also argue that there is here on the facts no trade dispute because it is said the second defendant, when he took up his employment, never raised any issue or had any dispute concerning his tenure. On the facts, therefore, it is said, the lack of any bona fide or genuine dispute excludes the existence of a valid trade dispute. Again, it seems to me that these are issues of fact which will have to be canvassed at trial and I am satisfied that a fair issue for decision at trial has been shown. Coupled with this submission was a suggestion that this dispute has little enough to do with any sense of grievance which the second and third defendants might have, but rather is a further chapter in an ideologically driven saga of objection on the part of the first defendant to blocklayers being employed other than as P.A.Y.E. employees. That is obviously a matter that can be explored at trial as part and parcel of the plaintiffs’ contention that there is no genuine dispute, still less a trade dispute in existence here.
As is clear therefore, I take the view that the plaintiffs have raised a serious issue for trial under a number of different headings and, therefore, have surmounted the first hurdle which confronts any applicant for an interlocutory injunction. In such circumstances, the court normally proceeds to consider the next question, namely, adequacy of damages. If it concludes that damages would not be an adequate remedy, it then considers the balance of convenience. That is the course which I propose to adopt in the present case and I will then deal, finally, with the submission which has been made by the defendants arising under the provisions of s. 19(2) of the Act of 1990.
Adequacy of damages
The injunction in the present case is sought only in respect of the first plaintiff. The second plaintiff was joined during the course of the hearing because it is the one which has the actual contractual arrangement with Kingscroft Developments Ltd. I am satisfied, however, on the evidence, that the picketing which has been engaged upon has been wholly effective. Very substantial losses have been suffered to date and I am quite satisfied that the picketing has effectively brought all activity of the first plaintiff on the Swords site to an end. That will mean not merely a loss of income in the present case but, as is said, will have a catastrophic effect on the first plaintiff’s business with the probability of it having to cease its operations at the site with resulting unemployment for other persons who are not involved in the dispute. I am of the opinion that the damages which are being suffered are irreparable since it is not merely the loss being suffered on this contract but also, as is deposed to, the first plaintiff’s commercial credibility is being threatened. As far as Kingscroft is concerned, it has indicated that it will not utilise the plaintiffs’ services in the future. The plaintiffs have been in business for very many years and, in my view, have demonstrated that their commercial viability has been jeopardised. Irreparable damage is being caused by the picket.
Balance of convenience
It is my intention to offer an early trial to this case. But if an injunction is not granted in the meantime, there is every reason to believe that the industrial action will persist with losses accruing on a daily basis. If the injunction is granted the defendants will, admittedly, be precluded from exercising what may, at the trial of the action, be demonstrated to have been their lawful entitlement. In such event, it seems to me, that they will be adequately compensated by an award of damages and can, at that stage, of course, resume the activity complained of at present. There is no reason to doubt the undertaking as to damages which is being proferred by both plaintiffs. In these circumstances, the balance of convenience lies in favour of the grant rather than the refusal of the injunction. So, if ordinary principles concerning injunctions were applicable, I would be prepared to grant the injunctive relief which is sought here. It is at this juncture that I must now turn to the argument which has been made pursuant to the provisions of s. 19(2) of the Industrial Relations Act, 1990.
Section 19 of the Industrial Relations Act, 1990
The defendants rely upon the provisions of section 19(2) of the Act. It provides as follows:-
“Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.”
It is quite clear that this subsection brings about a considerable change in the law governing the granting of interlocutory injunctions in trade disputes. As was said by Keane J. in Nolan Transport (Oaklands) Ltd. v. Halligan (Unreported, High Court, Keane J., 22nd March, 1994) at p. 3:-
“Clearly the object of sub-s. 2 is to ensure that in cases where there is at least a fair case that the trade union was acting in contemplation or furtherance of a trade dispute, such injunctions should not be granted where they would have been previously granted on the basis of irreparable damage which would not be remediable by an award of damages.”
Later in that judgment he went on to say at p. 4:-
“I pause here to say that whilst there appears to be no authority on the section, it seems to me, as a matter of first impression, that the onus must be on the person resisting the injunction to establish that the provisions of s. 14 have been complied with, which seems to me to be crucial to the operation of the section. If the section has been complied with, then the Oireachtas goes on to provide for this unusual and special situation where the court must apply particular considerations to the granting of an interlocutory injunction, considerations which otherwise would not apply. Before a trade union is afforded the protection of s. 19 and, conversely, an employer is deprived of a protection that he would normally have at common law in relation to the obtaining of an interlocutory injunction in circumstances where his business is or could be affected, I would take the view that the court must be satisfied on the evidence before it that s. 14 has been complied with.”
A similar approach was taken by Laffoy J. in G. & T. Crampton Ltd. v. Building & Allied Trades Unions (Unreported, High Court, Laffoy J., 20th November, 1997).
Section 14 of the Act requires the rules of every trade union to contain the provisions set out therein on secret ballots. These provisions are comprehensive. Paragraph (a) precludes union involvement in a strike or other industrial action without a secret ballot and requires that entitlement to vote in the secret ballot should be accorded equally to all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action.
Section 14(2)(f) provides that as soon as practicable after the conduct of the ballot, the union shall take reasonable steps to make known to its members entitled to vote in the ballot (1) the number of ballot papers issued, (2) the number of votes cast, (3) the number of votes in favour of the proposal, (4) the number of votes against the proposal and (5) the number of spoilt votes.
Mr. Brendan O’Sullivan, a trade union official attached to the first defendant, having referred to the correspondence which I have already set forth, averred that in the absence of a response he caused a secret ballot to be conducted of the members of the union concerned in the dispute. He says this was done in accordance with the rules of the union and the provisions of the Act. He then exhibits the ballots cast by the three members in question. He says that the outcome of the ballot was unanimously in favour of industrial action and, in accordance with s. 19 of the Act, he gave notice of industrial action to take effect from the 30th May, 2002. The notice was sent by registered letter dated the 22nd May, 2002. To facilitate a resolution of the dispute by negotiation he says the union deferred the placing of pickets on the site in question until the 12th June, 2002. The ballot papers read as follows:-
“Building and Allied Trades Union
Official Ballot Paper
22nd May, 2002
Subject: To engage in industrial action with [the first plaintiff] up to and including the placing of pickets on company sites.
in favour against”
In the first affidavit sworn by Mr. Lynch on behalf of the plaintiffs, he said it was unclear as to how the first defendant purported to conduct its alleged ballot in circumstances where none of its members were employed on the Swords site. That of course begs the question as to the status of the persons who were working there. Be that as it may, the major criticism which was made during the course of the hearing was that the ballot, in order to be valid for the purposes of s. 19(2) of the Act had to comply with the requirements of s. 14. The ballot ought to have been conducted in circumstances where the entitlement to vote would be accorded equally to all members whom it was reasonable at the time of the ballot for the union concerned to believe would be called upon to engage in the strike or other industrial action. Only three persons were balloted. On the day the picketing commenced, it is accepted by the defendants that there may have been as many as nine persons attending on the picket. The plaintiffs contend for a much larger number. Since then it is said that the only persons who have been picketing are the second and third defendants, both of whom are bricklayers and Mr. Thomas O’Dowd, a labourer. The third defendant joined the union subsequent to the ballot being held. In addition Mr. O’Sullivan and another official of the union accompanied the picket on occasions. Furthermore, a number of members of the branch committee of the union picketed on the first day of the picket.
A constituency of just three persons was balloted. Yet on the first day of the picketing, on the defendants own evidence, up to nine persons picketed. Assuming that all three who voted in favour did so and that the third defendant was not a member of the union at the time, that still leaves five persons who picketed to be accounted for. The evidence in this regard which is set forth at para. 11 of the affidavit of Mr. McCormack (and not Mr. O’Sullivan) is not informative as to who was involved on the first day. Even interpreting what is averred to therein in as benign a fashion as possible from the defendants’ point of view, it does not in my view adequately account for the fact that only three persons were balloted whilst a much larger number picketed. The only explanation as to how the voters were chosen is to be found at para. 11 of Mr. O’Sullivan’s affidavit. He says there that he caused a secret ballot to be conducted of the members of the union concerned in the dispute in accordance with the rules of the union and the provisions of the Act. But that is not the appropriate criterion in deciding the constituency of persons who are entitled to ballot. The union is obliged to ensure that all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action be balloted. There is nothing on affidavit to suggest that that exercise was carried out. Moreover there is no evidence at all of compliance with s. 14(2)(f).
In my opinion, the onus is upon the defendants to satisfy the court as to compliance with the provisions of s. 14. That onus is not discharged in this case by a bald assertion that the ballot has been carried out in accordance with the rules of the union and the provisions of the Act. Evidence of sufficient weight must be given of such compliance. I am fortified in this view by the observations of Murphy J. giving the leading judgment in the Supreme Court in Nolan Transport (Oaklands) Ltd. v. Halligan [1999]1 I.R. 128. At p. 158 he said:-
“Where a significant statutory benefit is conferred on one litigant at the expense of another upon express statutory terms, the benefit should not be available if the terms are not fulfilled.”
Later in the judgment, at p. 160, he said:-
“[¦] but I would find it difficult to escape the conclusion reached by Keane J. and accepted by Laffoy J., that the onus lies upon the party resisting an application for an interlocutory injunction to show that a secret ballot as envisaged by s. 14 has been held. Moreover, it could hardly be sufficient to establish the existence of a stateable case in relation to the compliance with the rules required to be adopted by a union pursuant to s. 14 aforesaid. The decision of a court on an interlocutory application as to whether or not the particular immunity granted by s. 19(2) is available is itself a final decision and determines finally whether that statutory benefit is available to the trade union.”
Further on in the judgment Murphy J. said at p. 161:-
“I am confident that the trade union movement will, if it has not already done so, arrange that the rules of all unions are amended so as to comply with the requirements of s. 14 and, of equal importance, that secret ballots will be conducted not merely in accordance with the terms of such rules but also under professional and independent guidance which will guarantee that all appropriate conditions are complied with and facilitate the union in proving that such was the case.”
In the present case, whilst the first defendant has certainly gone further than it did before Laffoy J. in the G. & T. Crampton Ltd. v. Building & Allied Trades Unions (Unreported, High Court, Laffoy J., 20th November, 1997) in that it has put the result of the ballot in evidence before me, it has not, in my view, discharged the onus required to demonstrate a full and complete compliance with s. 14. That is particularly so in the choice of the constituency of just three persons who were asked to ballot.
As the onus has not, in my view, been discharged by the defendants, having regard to what I have already said, injunctive relief will be granted.
In these circumstances it is not necessary for me to consider the further interesting argument made to the effect that even if the defendants had successfully availed themselves of s. 19(2), nonetheless, an injunction should be granted to restrain the activity complained of because the picketing to date has not been carried out for the statutory purposes.”
Esplanade Pharmacy Ltd. v. Larkin and Others.
Maguire C.J.; Lavery J. [1957] 1 I.R. 285
Supreme Court
–
MAGUIRE C.J. :
25 Nov.
I have had an opportunity of reading the judgments about to be delivered by Mr. Justice Lavery and Mr. Justice O’Daly and I agree with them.
LAVERY J. :
The defendants admit thatto use the common well-understood wordthey picketed or caused to be picketed the premises of the plaintiff Company at Albert Road, Bray, where the Company carries on the business of pharmaceutical chemists.
The action is brought to restrain by injunction this picketing and for damages caused to the plaintiff Company thereby.
The picketing is clearly unlawful and constitutes a”watching and besetting” of the premises unless it is justified by the provisions of the Trade Disputes Act, 1906, as being done by persons acting on their own behalf or on behalf of a trade union “in contemplation or furtherance of a trade dispute” (s. 2).
It is clear that the Workers’ Union of Ireland, a registered trade union, authorised and directed the picketing. Mr. Larkin, the secretary of the Union, on behalf of the Union accepted full responsibility.
The sole question for consideration is whether the acts were done “in contemplation or furtherance of a trade dispute.”
In their defence, the defendants averredpara. 9 (c)
that at all material times a trade dispute with reference to the hours of business of the plaintiff Company existedbetween the Workers’ Union of Ireland and the plaintiff Company, andpara. 9 (d)that a further trade dispute exists and at all material times existed between the Workers’ Union and the Irish Drug Association (an Association of employers in the trade) by reason of the failure of the plaintiff Company, as a member of the Association, to operate the same hours of business as the other members of the Association in accordance with an agreement made on the 14th June, 1951, between the Union and the Association.
Mr. Justice Dixon has held that such a dispute, or disputes if there is a material difference between sub-paras. (c) and (d), did not constitute a trade dispute within the meaning of the Act of 1906.
I fully agree with this decision and with the reasons given by the learned Judge for so holding.
It might be sufficient to adopt this part of his judgment but perhaps I should state my reasons in my own words.
It is quite clear that a dispute existed as to the hours of business during which the plaintiff Company carried on their trade on Sundays during the period in question.
I accept that the parties to this dispute were the plaintiff Company, on the one hand, and the Union, acting on behalf of workmen engaged in the trade, on the other.
The learned Judge in the course of his judgment said:”You cannot have, under the Act, a dispute between a union, solely on the one side, and the employers on the other. There must be employeesworkmeninvolved in the dispute, otherwise than merely as being members of the union.” The appellants submit that the learned Judge was wrong in this.
It is unnecessary to consider whether in other circumstances a union could raise a trade dispute as, in my opinion, in the present case there was evidence that the Union did so on behalf of workmen members, and I have no doubt that, so doing, a dispute arose between workmen and an employer and that this dispute might be a trade dispute if it otherwise satisfied the meaning of the expression. I think the learned Judge in the passage quoted may have been regarding the Trade Union as involved in a dispute between employers and not on behalf of its workmen members, and so understood I agree with his view.
In my opinion the dispute or disputes do not come within the definition. Sect. 5, sub-s. 3, of the Act defines the expression, “trade dispute.” So far as material for the present caseI quote from Mr. McGonigal’s argument the material words, “the expression ‘trade dispute’ means any dispute between employers and workmen . . . which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour of any person.”
The plaintiff Company had one employee only, Miss McEneany. It observed in her regard strictly the terms of employment and the conditions of labour required by her contract of employment and by the agreement and considered satisfactory by the Union. There was no complaint whatever with regard to her.
The action of the plaintiff Company in keeping open shop beyond the period of two hours on Sundays-did not affect or interfere with the working conditions of any person employed by any other firm.
I consider it impossible to hold that the dispute was in any way connected with the employment or conditions of labour of any person.
It is submitted by the defendants that even if there is no existing trade dispute that picketing is protected by s. 2, sub-s. 1, of the Act of 1906 if a future trade dispute is anticipated and the picketing is done in contemplation of this future dispute.
As I have set out, the defence states the alleged trade disputes relied on which are existing disputes and there is no allegation that a future dispute is anticipated and that this will be relied on. It seems to me that if such a defence was to be made it should have been pleaded.
However, I am loth to decide the case on a pleading point nor indeed do the plaintiffs ask that this be done.
The argument runs thus:if the plaintiff Company carry on business on Sundays beyond the period of two hours, other firms will seek to do the same and will require their employees to work the longer hours. If and when this occurs, a dispute will arise between these employers and their staffs and this will be a trade dispute.
It is in contemplation of this event, the defendants say, that they by picketing seek to compel the plaintiff Company to observe, what they call, the normal trading hours. There was evidence that this eventuality was feared and there can be no doubt in my opinion that the action of the plaintiff Company might possibly have this result, but only if action is taken by others in their own interests and in the conduct of their business.
I can understand the Union’s reasons for seeking to impose limited trading hours on all shopkeepers whether they employ labour or do the work themselves, but this is by no means sufficient to establish that in pursuit of this policy they are justified in using the industrial weapon of the picket.
The Shops (Hours of Trading) Act, 1938, provides for controlling opening hours for shops both on week-days and on Sundays. The second schedule of the Act permanently excepts from these provisions “the business of selling medicines . . . when carried on by a person entitled to keep open shop for the sale of poisons under the Pharmacy Act (Ireland), 1875. . . .”
The defendants and others interested can nevertheless by political activities and in other ways seek to have the law amended.
The issue in the present case is whether they are entitled to use the weapon of the picket to do what the Legislature has not so far done. In Conway v. Wade (1), Lord Loreburn L.C. said, at p. 512:”I come now to the meaning of the words ‘an act done in contemplation or furtherance of a trade dispute.’ These words are not new in an Act of Parliament; they appear in the Conspiracy and Protection of Property Act, 1875. I think they mean that either a dispute is imminent and the act is done in expectation of and with a view to it, or that the dispute is already existing and the act is done in support of one side to it. In either case the act must be genuinely done as described, and the dispute must be a real thing, imminent or existing.”
In the same case Lord Shaw said, at p. 522:”In this view, what is meant by the words ‘in contemplation or furtherance of a trade dispute’? My Lords, I think the argument was well founded that the contemplation of such a dispute must be the contemplation of something impending or likely to occur, and that they do not cover the case of coercive interference in which the intervener may have in his own mind that if he does not get his own way he will thereupon take ways and means to bring a trade dispute into existence. To ‘contemplate a trade dispute’ is to have before the mind some objective event or situation, with those elements of fact or probability to which I have adverted, but does not mean a contemplation, meditation, or resolve in regard to something as yet wholly within the mind and of a subjective character. I think that any other construction would be ill-founded and would lead to strange and mischievous results.”
The facts in Conway v. Wade (1) were quite different from those in the present case but these words of the learned Law Lords may be applied, dealing as they do with the construction to be given to a section of the Act.
To accept the submission that because someone else may do something which will create a trade dispute on account of the exercise by the plaintiffs of their ordinary rights a trade dispute is imminent would certainly lead to”strange and mischievous results.” Many examples were given during the argument. The plaintiffs might be required to close shop altogether and be picketed if they refused. There is no doubt that the mere fact that they carry on business at all may affect the prospects of employment of chemists’ assistants and therefore the matter of “their employment or non-employment.”
In my opinion such a future dispute which may or may not arise cannot, as a contemplated event, be said to justify the picketing of the plaintiffs’ premises.
I have not referred to the construction of the agreement of 1951. I share the view of Mr. Justice Dixon that this is immaterial and am prepared to assume, though unconvinced, that it fixed for Sundays an opening period of two hours.
As I have said, there clearly was a dispute about opening hours and if it had the character of a trade dispute, it would make no difference whether there was or was not an agreement binding the parties.
In my opinion the appeal should be dismissed.
KINGSMILL MOORE J. :
I agree.
O’DALY J. :
This appeal is taken by the defendants from an order of Mr. Justice Dixon, dated the 9th December, 1953, restraining them and their servants and agents from picketing the plaintiff Company’s business premises at Bray, Co. Wicklow.
The Company’s premises are a pharmacy known as the Esplanade Pharmacy and the directors of the company and its only shareholders are a Mr. and Mrs. Pattison. It appears that pharmacy owners are banded together in a body known as the Irish Drug Association, and that pharmacy employees have been organised in a chemists’ branch of the Workers’ Union of Ireland. In 1951 the Association entered into a written agreement with the Union “regarding wages, hours of trade and conditions of employment.” The agreement, under the heading,”Hours of Employment,” provided for two hours’ duty (11 a.m. to 1 p.m.) on alternate Sundays and bank holidays. In the summer of 1953, the Pattisons began to trade all day on Sundays. They then had in their employment a Miss McEneany, a member of the chemists’ branch of the Workers’ Union of Ireland. Her hours of duty, however, were unaffected by the extension of the hours of Sunday trading at the Esplanade Pharmacy; the Pattisons themselves attended to the shop during the additional hours of opening.
Close to the Esplanade Pharmacy is another pharmacy owned by a Mrs. McGuirk. Mrs. McGuirk employs a Miss O’Neill, who is also a member of the chemists’ branch of the Workers’ Union of Ireland. On the 8th June, 1953, Miss O’Neill wrote to her Union complaining of the extension of the hours of Sunday trading at the Esplanade Pharmacy as being beyond “the proper trading hours” and because, as she said, it would mean that her hours would be”staggered” or that she would have to work overtime, and asking that the Union should look into the matter, and that she should be informed what action could be taken. There were also verbal complaints about the Sunday trading hours of the Esplanade Pharmacy from other Union members working in Bray. Moreover, Miss O’Neill’s employer, Mrs. McGuirk, was not silent. She told the Union secretary that unless the Pattisons were made to observe the agreement of 1951 she and other pharmacists in Bray would exercise the same privilege of staying open on Sundays.
In these circumstances the secretary of the Union wrote on the 4th July, 1953, to Mr. Pattison requesting him to restrict, his trading to two hours on Sunday, “agreed upon between this Union and the Association . . . as otherwise the employment of our members in firms which honour the agreement, could be seriously prejudiced.” Mr. Pattison, by letter dated the 10th August, 1953, replied that while a member of the Association he had no hand in fixing the agreed hours which were not suitable for his business; and, in any event, that the Company employed Union members who worked only Union hours and at Union rates. Following the receipt of this letter, verbal requests were made by officials of the Union to Mr. Pattison to restrict his Sunday trading to two hours. He still declined. The Union thereupon called on Miss McEneany to leave the Company’s employment. This she did. Finally, on the 29th July, 1953, the Union placed a picket on the Company’s premises. The defendants justify the picketing of the plaintiff Company’s premises by pointing to this dispute between the Union and the Company as to the hours of business of the Company which they say is a”trade dispute” and they invoke the protection of s. 2 of the Trade Disputes Act, 1906.
The expression, “trade dispute,” is defined in s. 5 of the Act of 1906 as meaning “any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person” and a “workman” is a workman”whether or not [he is] in the employment of the employer with whom a trade dispute arises.”
The first and main question raised by this appeal is whether this dispute is connected with the conditions of labour of pharmacy employees. The appellants’ submission is that the dispute with the respondents’ pharmacy is connected with the conditions of labour of their members because the employment of their members in other pharmacies could be seriously prejudiced by those other pharmacies insisting on opening for longer hours on Sundays and requiring their staffs to work “staggered” hours or overtime, thereby curtailing their members’ Sunday leisure. This is a very real matter, the appellants say, because already Mrs. McGuirk and other pharmacy owners in Bray have indicated that they will claim the privilege of longer trading hours on Sundays unless the Esplanade Pharmacy is made conform.
The respondents’ answer to this submission is that in their pharmacy trade union requirements touching the conditions of labour of employees have been scrupulously observed and that the subject-matter of the complaint Miss O’Neill’s and the Union’srelates not to the conditions of labour of employees but to the working conditions of employers.
The respondents’ submission is in my opinion correct.
The dispute which has arisen here is, it seems to me, one which has been raised with the respondents in their character as pharmacy owners, and not as employers; it might equally well have arisen with a pharmacy owner who never had occasion to employ an assistant. The respondents have not threatened to alter or worsen the conditions of labour of their only employee. That threat if threat it behas come from other employers. It is those employers and not the respondents who may be on the eve of a trade dispute with their employees, and with the employees’ union. Yet we find that picket action has
been taken not against these employers who would contemplate altering the agreed conditions of labour of their employees, but against an employer who professes his willingness to abide strictly by those conditions. I have not overlooked the appellants’ argument that it is the action of the respondents in opening on Sundays for longer hours than their competitors which threatens to jeopardise the existing position with regard to hours of employment on Sundayand it is immaterial whether that position has been established under the agreement or by virtue of an understanding; and it is to me wholly understandable that the Union should wish to take action immediately on a limited front rather than be compelled later to do battle over more extended ground. But picketing, otherwise watching and besetting, a premises is lawful only in the conditions defined in the Trade Disputes Act, 1906; and the Act, being in derogation of common law rights, has no wider scope than is found clearly marked out in it. It would, in my opinion, be an unwarrantable extension of the Act to hold that picketing in furtherance of this dispute is rendered lawful by the Act. This dispute may well be the prelude to a trade dispute, but it is not itself a trade dispute.
The question whether a trade union of workmen can be a party to a dispute for the purpose of satisfying the definition of “trade dispute” in the Act of 1906 has also been raised on this appeal. I expressed an opinion upon that matter in the Dublin Workingmen’s Club Case (1). Whether the opinion I there expressed is correct is of no moment in this case. Here the real disputant is Miss O’Neill, and the Union has been acting on her behalf as well as on behalf of other pharmacy workers. The hand was the hand of the Union but the voice was the voice of Miss O’Neill.
I agree that the appeal should be dismissed.
MAGUIRE J. :
I agree with the judgments which have just been delivered.
Sherriff v. McMullen and Others.
Kingsmill Moore J.
[1952]
1 I.R. 236
KINGSMILL MOORE J. :
29 Nov.
The plaintiff in this suit, Mr. Frederick Sherriff, is the owner of a sawmill and timber business which he carries on with the aid of his son, Frederick Sherriff, junior, at Bailieborough, in the County of Cavan. He is accustomed to buy standing timber, fell it, convert the better parts of it into planks and scantlings, and utilise the large branches and rougher portions for the manufacture of such articles as hayrakes and handles for agricultural implements. The defendants are all members or officials of the Irish Transport and General Workers’ Union. Mr. William McMullen is the General President of the Union; Hugh Boyle, an employee of Irish Shoe Supplies (1946) Ltd., is shop steward of that company’s factory at Belturbet and secretary to the local branch of the Union; Gerard Clarke is an employee of Messrs. Corrie and Co., Metalworkers at Bailieborough and a shop steward of their works; Thomas Johnston is also an employee of the same company and a member of the Union.
On the 31st July, 1949, the plaintiff issued a plenary summons against the defendants, claiming damages for conspiracy, and an injunction to restrain the defendants from conspiring to injure the plaintiff in his trade or business. The matter now comes before me on a motion for an interlocutory injunction which, by agreement, is to be treated as the trial of the action. The affidavits, again by agreement, have been supplemented by oral evidence. It was expressly admitted by Counsel for the defendants that, as far as the first defendants were concerned, they had agreed and consented to do acts, which would at common law amount to an actionable conspiracy sounding in damages, but it was contended that they were protected from liability by s. 3 of the Trade Disputes Act, 1906, in as much as the acts of which complaint was made were done in contemplation or furtherance of a trade dispute. Counsel for the plaintiff argued first that there was not any trade dispute within the meaning of that term as defined in s. 5, sub-s. 3, of the Act; secondly that, if there was such dispute, the acts were not done in contemplation or furtherance of the dispute; and thirdly, that the protection of s. 3 did not extend to cover the procurement of a breach of covenant, where such contract was not one of employment.
[The trial Judge then reviewed the evidence as to the relations between the plaintiff on the one hand and his workmen and the officials of the Union on the other hand, during the first six months of 1949. He concluded that a trade dispute as to wages had arisen between the plaintiff and his employees who were represented by the Union officials: that in consideration of an interim increase in wages the Union officials had agreed to forego strike action pending an investigation of the dispute by the Labour Court, but that the dispute still existed, though action was in abeyance, on the morning of the 7th June. On that day the workmen, after discussions between themselves determined to resign from the Union and accordingly sent a letter to the secretary of the Union, signed by all of them, intimating their resignation. The resignations were a voluntary act on the part of the workmen, but the officials of the Union were under the mistaken, if bona fide, impression that the resignations were the result of persuasion and pressure on the part of the plaintiff. From the 7th June the workmen appeared satisfied with their wages and conditions and did not seek any alteration.]
His Lordship continued:
It is important to realise who were the parties to the original dispute. In my view the two parties were Mr. Sherriff, on the one hand, and his workers, on the other. Each of those two parties was represented by a trade union authorised to carry on negotiations on their behalf, the men by the Irish Transport and General Workers’ Union, Mr. Sherriff by the Employers’ Federation. Moreover, so long as each party belonged to a trade union it wasfor all practical purposes at any ratebound to allow that trade union to decide and dictate the action to be taken, so that from another point of view there might seem to be a dispute between the General Workers’ Union and the Employers’ Federation. This does not, however, seem to be correct. The Union was careful in its letters to speak only for “our members concerned,” that is to say the members who were employed by Mr. Sherriff. The Federation was only acting for Mr. Sherriff. Between the members of the Union as such and the members of the Federation as such there was no dispute. It was open to Mr. Sherriff’s employees, if they so desired, to leave the Union, thus freeing themselves from its orders and cancelling its right to represent them and speak for them. They were then free to carry on the dispute or to compose it. Similarly, Mr. Sherriff could, if he liked, resign from the Employers’ Federation and be once more his own master and negotiate himself.
Even if everything alleged against Mr. Sherriff by the officials of the Trade Union were true I do not think it would affect the result of this action; Mr. Sherriff on their own showing, had done nothing that he was not legally entitled to do; and a little quiet reflection might have enabled the Union officials to realise this. But they were touched on a sore spot and they were human.
To a trade union official the reluctance of an individual employer to revise wages is merely an example of the original sin which affects the whole of the genus employer. It is regrettable and must be checked, but it does not put the sinner outside the pale. But an attack on the principle of collective bargaining, an attempt to seduce men from their union allegiance, is rank and dangerous heresy which must be extirpated by every means legally employable. Mr. McMullen determined to employ such means. On the 10th June he wrote to the plaintiff:
“Dear Sir,
We are informed that you have promised your men an increase and constant employment if they leave the Union. If this is true you will pay them for doing nothing as we will not allow our members in any part of the country to handle your products.
Yours faithfully, Irish Transport and General Workers’ Union per Wm. McMullen, General President.”
On the 13th June he wrote to Hugh Boyle, secretary of the Belturbet branch of the Union, as follows:
Hugh Boyle,
Belturbet.
Re Messrs. Fred. Sherriff & Sons,
Baileboro.
Dear Comrade,
We are in dispute with the above firm and the owner recently advised our members to leave the Union when he would give them an increase and also constant employment.
Pending hearing further from us in the matter your members in Belturbet should not handle goods for or from this particular firm.”
Mr. McMullen is a very experienced trade union leader, and he knows perfectly well that such measures as he contemplated would be actionable if damage resulted, unless he were protected by s. 3 of the Trade Disputes Act. At the time he wrote the letter he had reason to think that two members of Mr. Sherriff’s staff, Carolan and Michael Reilly, might still be members of the Union, and that he was entitled to carry on the wages dispute in their names, thus securing the protection of the Act. He does not, and did not, rely mainly on this point, but on two legal assumptions, both of which I hold to be incorrect. He argued first that all the men were still members of the Union because the rules contained no specific provisions whereby a man could resign; and secondly that, as Mr. Sherriff had induced the men to leave the Union by promises and persuasion, his action was unconstitutional as interfering with the guaranteed rights of free association, and that the consequent action of the men was accordingly void and of no effect. His counsel made no attempt to support the latter argument, which was clearly unstateable by a lawyer, but they did adopt the first argument which I shall have to consider more fully later.
Mr. FitzGibbon, on the other hand, relies on those two letters to bring him home, even if a trade dispute existed; they were not, he suggests, written in contemplation or furtherance of any trade dispute but were inspired by anger and a desire to punish Mr. Sherriff for things which Mr. McMullen wrongfully assumed Mr. Sherriff had done, and which, even if he had done them, were perfectly legitimate. I will accept for the moment that the immediate cause of the writing of those letters was anger against Mr. Sherriff and a desire to injure him, in retaliation for what Mr. McMullen regarded as improper conduct. Even so the letters may have been written in furtherance of a trade dispute. Malice, anger or hatred may inspire a course of action, but, nevertheless, if it is in furtherance of a trade dispute the Act gives protection: Dallimore v. Williams and Jesson (1). Mr. McMullen, if I understand him correctly, said that in an ordinary wages dispute the Union would not resort to the weapon of boycott, and he would not have used it in this case if he had been convinced that the attempted resignation of the men was a spontaneous act. But this weapon is always held in reserve and, if the employer uses methods in carrying on his side of the dispute which the Union regard as unjustifiable, then the Union employ the boycott weapon in retaliation. It may be a retaliation, but it is a retaliation in pursuance of an existing trade dispute and in furtherance of it. I accept this point of view which disposes of Mr. FitzGibbon’s argument if, at the time when the policy of the letters bore fruit in a conspiracy which injured Mr. Sherriff, a trade dispute existed. The existence or non-existence of a trade dispute is a vital point of the case.
When Mr. Sherriff received Mr. McMullen’s letter he called the men together and asked if there were any members of the Union present. Carolan and Michael Reilly said they were members and Mr. Sherriff told them to leave. He then read to the men the letter he had received, and said he was leaving it to them to deal with it. Monaghan thereupon himself drafted and wrote out the following form of confirmation:
“c/o Messrs. Fred Sherriff & Sons,
Sawmills, Bailieborough.
13th June, 1949.
To: Mr. McMullen,
I.T. & G.W.U.,
35 Parnell Sq.,
Dublin.
Dear Sir,
We the employees of Mr. Fred Sherriff & Sons Saw Mills B’Boro, wish to inform you that we have tendered our resignation to you entirely of our own free will. We have never been at any time approached, or influenced, in any way into taking this decision by either Mr. Sherriff and Son. It is the entire wish of each and every man here in handing in their resignation to you.”
To this form are annexed the signatures of all the men who had signed the earlier form of the 7th June with the exception of that of Joseph Carrie, and there is one additional signature, that of Joseph O’Reilly.
All the men in Mr. Sherriff’s employment had thus purported to resign by the 13th June. More men were taken on after this but before re-employment they also had ceased to be members of the Union. Nevertheless, for some of the important periods, there was at least one member of the Union employed by Mr. Sherriff. Joseph O’Reilly tells me, and I accept his evidence, that he rejoined the Union three weeks after the 13th June. He was employed continually till the 6th August, with the exception of a short period from the 16th to the 21st July. The Union also claims that Carolan remained a member. Carolan says that after signing the document of the 7th June he went to the local secretary and told him that he wished to remain in the Union and that the local secretary told him he could do so, and that he might sign any document put before him. The local secretary in his evidence does not say a word to corroborate this, and I reject Carolan’s story, which is not only unsupported by the official but is at variance with the story he tells in his affidavit. I hold him bound by the two documents he signed. On the 18th June he left Mr. Sherriff’s employment but returned on the 23rd June. In the meantime, on the 21st June, he had written a letter to the Union the effect of which is that he desired to remain a member and, although he did not pay any subscription till August, I hold that from the 21st June he was again a member of the Union. Thus from the 21st June onwards the Union could count one member (Carolan) in Mr. Sherriff’s employment, and from the 6th July they had a second member (Joseph O’Reilly). There is no evidence that either of those men, or indeed any men in Mr. Sherriff’s employment, were otherwise than satisfied with their wages and conditions of employment from the 13th June onwards. Yet the Union was entitled to represent those two men and to press for an increase of their wages. The Union, indeed, were claiming to represent all the men and were advancing a claim for an increase in all wages. I hold they were mistaken in law in their belief that they could represent all the men. But the lack of legal justification for their claim to speak for all the men does not alter their right to speak for two men. I hold that from the 23rd June till the issue of the summons there was in existence a trade dispute as defined in the Act.
The boycott instructions issued by Mr. McMullen to Hugh Boyle on the 13th June, and similar instructions which apparently made their way from head office to the employees of Messrs. Corrie & Co., Bailieboro’, had their natural effect. On the 30th June and the 13th July workmen of Messrs. Corrie & Co. intimated that they would not do repair work on machines which had been sent in by Mr. Sherriff. Thomas Johnston and Gerard Clarke were joined as defendants because of their part in these incidents. I dismissed the action against Thomas Johnston at the end of the case for the plaintiff, as I held there was not sufficient evidence to bring home against him the alleged conspiracy. I dismiss the action against Gerard Clarke on the ground that on the 13th Julythe only date when anything is charged against himthere was in existence a trade dispute and any acts done by him were in pursuance of such dispute.
The incidents which occurred in connection with timber which was to be delivered to the Irish Shoe Supplies (1946) Ltd. cannot be dealt with so summarily, the issues of law raised by them being more complicated. On the 31st May the Company had ordered from Mr. Sherriff 5,000 cubic feet of beech timber, to be cut to specifications as advised from time to time, and full delivery to be taken by the 1st January, 1950. This order was accepted verbally by Mr. Sherriff, senior, or Mr. Sherriff, junior, and it was further agreed that delivery should be made by instalments when required. Some time before the 20th June the Company asked that delivery of the timber should commence on that date.
Pursuant to the order and instructions lorries loaded with beech timber were sent by Mr. Sherriff to the premises of the Company on the 20th June, 14th July and 19th July. On each occasion the Company refused to take delivery because their men would not unload the timber. It is admitted that the part taken in such refusal by Hugh Boyle, secretary of the local branch of the Union and shop steward in the Company, amounted to a conspiracy with the defendant, McMullen, under whose orders he was acting, and it is further admitted that such conspiracy was actionable unless protected by s. 3 of the Trade Disputes Act. The 14th July and the 19th July were within the period during which I have already held that a trade dispute existed. The 20th June was outside that period. It was submitted for the defendants that a trade dispute did exist on the 20th June, although on that date no one of Mr. Sherriff’s employees was a member of the Union. For the plaintiff it was contended that, even if a trade dispute existed on all the three days when the consignments of timber were refused, nevertheless s. 3 of the Act did not help the defendants, as the section only protected the procurement of a breach of a contract of employment and the contract whose breach was procured in this case was not a contract of employment but a contract for the sale of goods, which imported an undertaking by the buyer to take delivery of the goods when tendered.
The defendants’ submission divided itself into two arguments. First it was contended that, as the rules of the Union contained no express provision for resignation, the purported resignations of 7th and 13th June were ineffectual unless accepted by the Union, and that no such acceptance was given. On this view, only by allowing his subscriptions to run into arrear for twenty-six weeks could a man cease to be a member of the Union as provided by rule 13. I have no hesitation in rejecting this suggestion. Unless there is something specific in the rules prohibiting resignation it seems to me that a member is free at any time to resign. It may be that after his resignation the Union can enforce against him certain contractual rights in respect of unpaid subscriptions or fines, but this does not mean that he can be retained as a member against his will. If authority be required for the proposition that a member of an unincorporated association may retire when he wishes, and that his retirement is effective without the consent of the association such authority may be found in the case of Finch v. Oake (1).
To understand the second argument it is necessary to refer to the definition of trade dispute in s. 5, sub-s. 3, of the Trade Disputes Act:” . . . the expression ‘trade dispute’ means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person . . .” It was suggested, though not very emphatically, that a dispute as to whether employees should be in or out of a trade union was a dispute as to the terms of their employment. In itself membership or non-membership of a union seems to me to be a question of status, and not a question of the terms of employment or conditions of labour. A dispute as to whether a man is or is not to belong to a trade union may indeed become a dispute connected with employment or non-employment or the terms of employment or conditions of labour, the commonest instance being where a union attempts to enforce the policy of a “closed shop” and seeks to compel an employer to dismiss non-union men by threatening to call out the members of the union. In this case, however, there was no attempt to enforce such a policy on the part of the Union. On the employer’s side there was no differentiation in the treatment of Union and non-Union men (as is shown by Carolan’s letter of the 21st June) and no refusal to employ Union men. Even if an employer were to use arguments and inducements to get his men to leave the union, and the union in resentment took action against him, I cannot think that a dispute as to whether an employer was entitled to behave in this way could, without more, come within the definition. Such a dispute is one about the behaviour of the employer not about the employment or terms or conditions of employment of the men. In Ryan v.Cooke and Quinn (2) it was held that, where a union had a dispute with an employer because she would not bring pressure to bear on her employees to join a union, this was not a trade dispute. It seems a logical corollary that where a union has a dispute with an employer because he induces his men by legal means to leave a union such a dispute equally is not a trade dispute.
But, says counsel for the defendants, there is more in it than this. Up till the 13th June the Union had at least one member among Mr. Sherriff’s employees, and were entitled to carry on, and were carrying on, a dispute as to the proper wages to be paid. Mr. McMullen’s letter to Boyle on the 13th June was a letter written in pursuance of such dispute. When the last member resigned on the 13th June this dispute may have come to an end, but a new dispute arose, between the members of the Union not in Mr. Sherriff’s employment and Mr. Sherriff, because of the methods which they allege Mr. Sherriff employed to induce the men to withdraw from the Union and so terminate the old dispute. This new dispute arose out of and was connected with the old dispute. The old dispute was about wages, therefore the new dispute was connected with a dispute about wages, and so was itself connected with wages (a term of employment) and accordingly was a trade dispute.
To this ingenious argument there is, I think, more than one answer. The first is that it neglects the facts and the realities of the present case. If I understood Mr. McMullen correctly, he did not recognise the existence of two disputes. When he wrote his letter to Boyle he believed that there was in existence a dispute as to wages, because he had an erroneous view of the law and considered that the resignation of the men was ineffective. His letter was written and his instructions were given in furtherance of a dispute as to wages which he thought to exist, and which did exist, in as much as Reilly was then still a member of the Union. When Reilly resigned on the 13th June the dispute came to an end. The Union had no member in Mr. Sherriff’s employment on whose behalf it could maintain a dispute. But the instructions contained in the letter to Boyle were continuing instructions and were never withdrawn, although Mr. McMullen must have become aware by the 15th June at least that all Union members in Mr. Sherriff’s employment had signed documents of resignation. Mr. McMullen never suggested that he allowed his instructions to remain in force because a new dispute had arisen, namely a dispute between all the members of the Union, on the one hand, and Mr. Sherriff, on the other, on account of the methods which Mr. Sherriff was alleged to have used. He allowed his instructions to remain in force because he still held that the resignations were ineffective, that Mr. Sherriff’s employees were still members, that he was entitled to maintain the dispute on their behalf and that the dispute was about wages and so a trade dispute. It is not contested that the actions of Boyle and the Shoe Company on the 20th June were taken as a result of Mr. McMullen’s instructions, and accordingly they were taken in pursuance of an imagined dispute, which I have held did not exist on that date.
Even if I am wrong on my interpretation of Mr. Mcmullen’s evidence and a new dispute did arise, as has been argued, I do not think that the new dispute was one which was so connected with the cause of the old dispute as to satisfy the definition. It is true that if the old dispute had not existed there would have been no new dispute. But it was not the nature or cause of the old dispute which provided the connection; it was the methods which it was alleged had been used to terminate the old dispute. There was no longer a fight about wages. It was a fight about the right of an employer to influence his men to leave the Union. The Act encroaches upon common law rights and must be interpreted strictly: per Lord Parker, in Larkin v. Long (1).I think the connection with terms of employment or conditions of labour, to which the definition section refers, must be something much more direct or immediate than any connection which is here suggested. The law is not disposed to attach legal consequences to such remote causes and I cannot hold that there was any trade dispute in existence on the 20th June.
It remains to consider Mr. McGonigal’s submission that, assuming there was a trade dispute in existence on the 13th and 19th July, such dispute does not protect Mr. McMullen and Mr. Boyle from liability for a conspiracy to procure a breach of contract. The procurement of a breach of contract without legal justification has for long been a tort in its own right, distinct from, and resting on different principles from, the tort of combination to injure a man in his trade or business. It is unnecessary, and in the present state of the law it is probably impossible, to define exactly what is and what is not legal justification: per Russell J., in Brimelow v.Casson (2). No legal justification has been suggested in this case unless justification can be found in s. 3 of the Trade Disputes Act. That section reads as follows: “An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.” It will be seen that procurement of a breach of contract is only protected when the contract is one of employment. The wording cannot be mere accident. Procurement of the breach of any contract other than a contract of employment is not protected, even if the acts which procure the breach are done in pursuance or contemplation of a trade dispute. It is curious that there seems to be no express decision on this point, but in Brimelow v. Casson (1), Russell J. gave a considered opinion (though the opinion was not necessary for his decision) that the section only afforded protection where the contract whose breach was induced was one of employment.
In this case the contract between Mr. Sherriff and the Shoe Company was one for the sale and delivery of goods by instalments. There was an implied undertaking by, and obligation on, the Company to take delivery of the instalments when tendered, and a breach of their obligation would give rise to an action for damages or might even afford grounds for total repudiation. The defendants, McMullen and Boyle, in combination, procured a breach by the Shoe Company of their obligation and, even if the acts procuring this breach were done in pursuance of a trade dispute, s. 3 is no protection. Accordingly, I hold that Mr. McMullen and Mr. Boyle are liable not only for the breach occurring on the 20th June, but also for the subsequent breaches of the 13th and 19th July and I direct an enquiry as to the damages Mr. Sherriff has suffered by reason of the refusal of the Shoe Company to accept delivery of the proffered timber on those three dates; and I grant an injunction to restrain the defendants, William McMullen and Hugh Boyle, their servants and agents from procuring or attempting to procure breaches of contract between the plaintiff and any other person or persons other than contracts of employment.
Kingsmill Moore J. 249
Supreme Court.
MAGUIRE C.J. :
1 March
I agree with the judgment about to be delivered by Mr. Justice Murnaghan and I have nothing to add to it.
GAVAN DUFFY P.:
This is an appeal from the judgment and order of Mr. Justice Kingsmill Moore, awarding to the plaintiff an injunction to restrain the defendants, William McMullen and Hugh Boyle, from conspiring to procure breaches of contract, other than contracts of employment, between the plaintiff and other persons, with an inquiry as to damages; I disregard other defendants now dismissed from the suit. The plaintiff owns saw mills at Bailieborough, Co. Cavan; Mr. McMullen is General President of an extensive and recognised trade union, the Irish Transport and General Workers’ Union, and Mr. Boyle is the local secretary of that union at Belturbet, Co. Cavan, and also shop steward and a charge hand in a concern called Irish Shoe Supplies (1946) Ltd., established in Belturbet.
From the evidence during a protracted trial and the careful judgment I find that in the course of a trade dispute as to wages between the plaintiff and his employees, members of the Union, a truce was arranged early in April, 1949, with a provisional increase of wages until the Labour Court could consider the dispute. The truce was arranged between the Transport Union and another union to which plaintiff at the time belonged. The Labour Court eventually listed the case for hearing on the 25th July, 1949, but in the interval the position of the contestants had undergone a remarkable change.
Here is briefly the sequence of the material events in June, 1949: on the 7th June, eighteen men (who described themselves as plaintiff’s employees, though a few of them were men awaiting re-employment) signed a joint letter to the Transport Union in Dublin, to the effect that, having given the matter full consideration, they were of opinion that membership of the Union was of no benefit to them and they gave notice of their resignation forthwith, saying that they had handed a copy of their letter to plaintiff. On the 10th June McMullen wrote a letter to plaintiff of special importance and significance:”We” [that is, the Transport Union]”are informed that you have promised your men an increase and constant employment if they leave the Union. If this is true, you will pay them for doing nothing, as we will not allow our members in any part of the country to handle your products.” The General President of the Union here warned plaintiff in clear language to expect drastic reprisals for his attack upon its membership, if the allegation was true. On the 13th June plaintiff sent him an indignant denial, adding that his men had told him that they were satisfied with their pay. The fact is, I think, that the men greatly feared that the plaintiff might close his business down if the Labour Court were to recommend further increases of pay. On the same 13th day of June McMullen wrote to Boyle that the Union was in dispute with the plaintiff’s firm “and the owner recently advised our members to leave the Union, when he would give them an increase and also constant employment. Pending hearing from us in the matter your members in Belturbet should not handle goods for or from this particular firm.” He wrote on the same day to each of the signatories to the letter of resignation with a copy of his letter of the 10th June to plaintiff, “because we consider it advisable that you should be made aware of our intentions in the matter, especially as we have reason to believe that your decision was not come to voluntarily.”
On the same day, however, the men (substantially those who signed the letter of the 7th June), having seen McMullen’s letter of the 10th June to Sherriff, wrote again to McMullen:”We the employees of Mr. Fred. Sherriff and Sons Saw Mills, Bailieboro,’ wish to inform you that we have tendered our resignation to you entirely of our own free will. We have never been at any time approached, encouraged or influenced in any way into taking this decision by either Mr. Sherriff” [the plaintiff] “and Son. It is the entire wish of each and every man here in handing in their resignation to you.” That letter rings true and I think the men’s reaction to McMullen’s threat against Sherriff was spontaneous. I take McMullen’s allegations against Sherriff to have been made in good faith, but he had acted on the tales of unreliable informants, and on receiving the confirmatory letter from the men he ought as a plain matter of fair play to have taken effective measures to ascertain the truth; he did not do so. This action was fought, unfortunately, I think, in view of the importance and difficulty of the subject, without pleadings, on a motion for an interlocutory injunction; otherwise McMullen would probably have faced a charge of prosecuting his dispute by injurious falsehood, on the principle of Ratcliffev. Evans (1), since he recklessly allowed his allegations to stand without proper inquiry until they led to damaging action, though he knew at least that their truth was very doubtful. But the case was not fought on that issue.
The plaintiff had a contract with the Irish Shoe Company of the 31st May, 1949, to deliver a large quantity of beechwood, and the parties agreed upon deliveries of instalments of the order to be made on the 20th June, the 14th July and the 19th July, 1949; but these three deliveries were effectively frustrated by the refusal of the Shoe Company’s employees, members of the Union acting under Boyle’s direction in pursuance of McMullen’s instructions, to handle any goods coming from plaintiff. The Shoe Company, anxious to avoid labour trouble, seems to have acquiesced in the men’s refusal, though in breach of their contracts of service. On the other hand, I think it was made sufficiently clear, and I do not think it was contested in this Court, that the Company’s failure to take the three deliveries involved three several breaches of its contract with the plaintiff, though a question was raised as to defendants’ responsibility for that consequence.
McMullen justifies his action, because “it is a long-established and recognised practice of trade unionists not to handle goods coming from a firm which is involved in a dispute with members of the union.” Boyle, having been told that plaintiff was trying to convert his place into a non-union house, felt that that conduct “could not be permitted and should be challenged by all the means ordinarily employed in furthering the rights of the men involved . . . including refusal by other trade unionists to handle goods coming from the plaintiff’s premises.” Both defendants sought to tack their activities against plaintiff on to the wage dispute between plaintiff and his men, by way of setting up a legal defence; but one felt that this Court was being invited to shut its eyes to realities, when the zeal of the defendants for the interest of plaintiff’s men was solemnly invoked in the effort to find a statutory defence for acts committed alio intuitu; the connection between the original trade dispute, now spent, and the new display of indignation by the defendants was illusory.
I have had the advantage of reading the opinion about to be delivered by Mr. Justice Murnaghan and I agree with him that the trade dispute between the plaintiff and his men came to an end with their resignation from the Union, and there is no occasion for me to develop that aspect of the case. On the minor issue of the right of members of the Union under the common form of Rules to resign without notice, I refer to the opinions in favour of such a right expressed by three members of this Court in Morans’ Case (1).
The notice of appeal, however, raises another and a farreaching issue, which in my view deserves more notice than it received; the notice of appeal complains that “the learned Judge misdirected himself in holding that the dispute between the plaintiff and the members of the Transport Union as to the plaintiff’s conduct in relation to the resignation of his employees from the Union did not constitute a trade dispute within the meaning of the Trade Disputes Act, 1906.”The appellants also deny that they combined to procure a breach of the Shoe Company’s contract with the plaintiff for the sale and delivery of goods. On the issue of the second and different trade dispute, I may disregard the fact that the defendants claimed to act in furtherance of the original dispute between the plaintiff and his men. The outstanding fact is that the plaintiff’s machinations (as alleged) tended directly to undermine the authority and lower the prestige of a nation-wide trade union and that conduct could not be tolerated by any union strong enough to hit back. The real purpose of the defendants (which they might well have avowed) was to teach Sherriff (and other employers who might be tempted to emulate him) the lesson that nemo impune me lacessit by giving him cogent, practical proof that a costly and disastrous eric could and would be exacted by the Transport Union from an antagonist daring to use the seductive methods open to an employer to cast discredit upon the Union. Now was that dispute a trade dispute within the Act of 1906? The appellants maintain that it was: it was a dispute between the members of a workmen’s union and an employer; it was a dispute connected with employment, with the employment of the men who had resigned: it arose from an employer’s alleged abuse of his position as employer (a powerful position in a small town) to seduce his employees from the Union by promises of better employment.
I should need further argument to determine this question, on which authority is scanty; and at this point I propose to assume, without deciding, merely for the purpose of the argument, that that dispute was a trade dispute within the definition in the Act. The authority, as the General President, of McMullen under the Union’s Rules to take the action impugned was not seriously contested, and the legality of the means to which the Union resorted now becomes the material question to consider. The charge is that the defendants tortiously interfered, not simply with the plaintiff’s trade or business, but with a subsisting commercial contract between Sherriff and the Irish Shoe Company. The relevant principle of liability in tort is a modern application of the wider proposition that any violation of a legal right committed knowingly is a cause of action. The principle is well put in Winfield’s Law of Tort, 3rd edn., at p. 573:”A.commits a tort if, without justification, he knowingly interferes with a contract between B. and C.”; and the plaintiff’s burden of proof on this issue is explained by Collins M.R. in Read’s Case (1).
The evidence on this particular issue at the trial may be described as elusive, presumably for the very good reason that the defendants’ very pertinent admissions (to which I shall return) rendered fuller and more precise evidence unnecessary. The contract between the plaintiff and the the Shoe Company was proved and evidence was given as to the three breaches; Boyle admitted that the plaintiff used to deliver about seven loads of wood a year to the Shoe Company, with which he had been doing business for a long time. Sufficient evidence was given of the refusal of the men to handle the plaintiff’s goods and of the Union’s persistence in boycotting him.
The appellants relied very strongly on the proposition that s. 3 of the Act of 1906 protects any interference with trade in furtherance of a trade dispute, even if the interferer induces a breach, not merely of a contract of employment, but of any contract, and then on the submission that all that the defendants had really done was to induce breaches of contracts of employment by the Shoe Company’s men. Now, s. 3 is of great importance to Labour, but it is very guardedly worded to give only a limited protection; the language of the section may be contrasted with that of the Clayton Act of 1914, as amended in 1932, in the United States, where the problems are very much bigger and labour law has been vigorously developed under a succession of Supreme Court decisions, interpreting the 14th Amendment to the Constitution and the statutes and greatly influenced by the outlook of the late Mr. Justice Holmes. Sect. 3 is careful to say that the acts protected are not to be actionable on the ground only of inducing a breach of contract of employment or of interference with trade, business or employment. In other words, to be protected the act done must be one which, if it does induce a breach of contract of employment or interferes with trade, does not otherwise constitute a tort; compare the recommendation in the Majority Report of the Royal Commission on Trade Disputes and Combinations, issued a few months before the Act of 1906 was passed, in favour of protecting an act “not in itself a tort” which interferes with a person’s trade, business or employment.
Upon the tort of inducing a breach of contract, as modified by the statute, Lord Sterndale M.R. in White v. Riley (1),speaking of a finding that the defendants had knowingly and wrongfully induced a breach of contract, said:”That is actionable unless it can be brought within the Trade Disputes Act, 1906. If it can be brought within that Act, then if it be only an inducement to break a contract of employment it is not actionable by reason of s. 3 of that Act.” The learned Master of the Rolls clearly read s. 3 as confining its protection as to inducement to breach of contract to service contracts and I respectfully agree with him. Russell J., as he then was, expressed the same opinion in Brimelow v. Casson (2).
The position of the defendants would illogically enough have been different under the Act had they provoked a strike, with the indirect result that the Shoe Company, bereft of its men, might be unable to fulfil its divers engagements; here their act was primarily a direct, intentional interference with a specific commercial transaction, the handling of plaintiff’s goods, for the express purpose of preventing the Shoe Company from taking delivery; as it happened, the same act caused disobedience to lawful orders in breach of a contract of service, and that act, viewed in that aspect, was protected by the statute; but the significant feature is this, that by the very same act the defendants, besides inducing breaches of service contracts on the three occasions and interfering with another person’s trade, also committed the tort of interfering with a commercial contract, knowingly and without justification.
The conclusion that, if s. 3 of the Act of 1906 fails to give them immunity, the defendants’ three interferences with that contract were tortious seems to flow directly from their express admissions at the trial: speaking of each of the three occasions on which the Shoe Company had to refuse Sherriff’s deliveries of wood because its men refused to unload the plaintiff’s timber, Mr. Justice Kingsmill Moore said in his judgment:”It is admitted that the part taken in such refusal by Hugh Boyle, secretary of the local branch of the Union and shop steward in the Company, amounted to a conspiracy with the defendant, McMullen, under whose orders he was acting, and it is further admitted that such conspiracy was actionable unless protected by s. 3 of the Trade Disputes Act.” I cannot disregard this unqualified confession of liability at common law, coupled to a claim for immunity under the very special provisions of the Act of 1906. In fact, Mr. McGonigal, who followed Mr. FitzGibbon for the respondent, opened his address by stating that the action was fought by the defendants on the basis that the acts were wrongful unless protected by the Act of 1906, as appeared from the judgment, so that he need not argue the wrongfulness of the acts; and he did not, but discussed other matters, arguing strongly that the acts done were not protected, because they were not done in furtherance of a trade dispute whereas I have no difficulty in holding that they were so done on the hypothesis that the dispute, being between the Union and the plaintiff, was within the Act of 1906 a trade dispute.
I am clearly of opinion for the reasons I have given that the conduct of the defendants on the three occasions went beyond the mere inducement of a breach of contract of employment and beyond mere interference with trade or business, with the consequence that s. 3 of the Act of 1906 does not protect them, and their admission that their conspiracy, if not so protected, was actionable at common law is an admission that they used illegal means, if that enactment fails them. Accordingly, in my opinion, even if one can treat the new dispute originated by McMullen on behalf of the members of the Transport Union as a trade dispute under the Act of 1906, the appellants are not entitled to succeed in this appeal.
MURNAGHAN J.:
The Trade Disputes Act, 1906, adopted in Ireland under the Constitution, took away actions of tort against trade unions (s. 4), and, at the same time, as regards action against individuals qualified protection was given by s. 3 of the same Act. This section reads:”An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.”
At the hearing of this action it was proved (and, indeed, was not disputed) that the defendants, William McMullen and Hugh Boyle, had agreed to induce and did induce the workmen employed in Irish Shoe Supplies (1946) Ltd. to refuse to handle any goods belonging to the plaintiff, and it was not disputed that the conduct of these defendants would amount to an actionable wrong unless it was protected by s. 3 of the Trade Disputes Act, 1906. The defendants accordingly undertook to prove that what was done was done in furtherance of a trade dispute. By s. 5, sub-s. 3, of the Trade Disputes Act, 1906, it is enacted:”In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression ‘trade dispute’ means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person, and the expression ‘workmen’ means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the-last-mentioned Act, the words ‘between employers and workmen’ shall be repealed.”
From the facts given in evidence there was undoubtedly a trade dispute between the plaintiff and the men employed by him about the wages paid to the plaintiff’s employees. This dispute had begun in January, 1949, as soon as the Plaintiff’s employees joined the Irish Transport and General Workers’ Union. By exertion of this Union’s officials substantial increases in the wages paid had been agreed to by the plaintiff and accepted by the workmen in April, 1949. It was also at this time further agreed that the men’s claim for higher wages should be referred to the Labour Court for further investigation. Although in the months following April no action was taken, I am of opinion that the wages dispute continued to be a real issue until the 7th June, 1949.
The matter of the dispute was to come before a conciliation officer appointed by the Labour Court on the 14th June and it is reasonable to conclude that consultations had been going forward as to the case of the workmen. The men employed by the plaintiff were, according to the evidence, in an uncertain state of mindthey seemed to fear that all increase of wages might lead to the plaintiff closing down his mill and they were most anxious to retain their employment. McMullen suspected that the plaintiff had sown the seeds of distrust but he was unable to prove anything to have been done by the plaintiff and the plaintiff resolutely denied that he did anything to persuade the men to act as they did act. It is remarkable that no employee even of those few who adhered to the Union was able to give evidence to show that the plaintiff had actively sought to persuade his employees to leave the Union. On the 7th June, after an interview which they requested of the plaintiff, the men actually at work and some others previously employedabout eighteen in all signed a letter of resignation from the trade union. At the trial, McMullen contended that the members of the Union could not resign and that the Union could continue to act on their behalf. Mr. Justice Kingsmill Moore did not accept this point of view and there was little argument in support of it at the hearing of the appeal. Apart from the rule of the Union dealing with lapse of membership by failure to pay twenty-six weekly subscriptions there is no rule dealing with resignation of a member. I think it to be clear law that each citizen has a right under the Constitution to join a union of his own choice, but that he has equally the right to resign from a union which he has joined. I am also of opinion that once a letter of resignation has been posted the resignation is effective as from the date of posting.
The action of the employees who signed this letter of resignation, and a second letter confirming it, dated the 13th June, and their subsequent conduct clearly amount to a withdrawal of their claim for increased wages. This is further confirmed by the fact that these men did nothing further to prosecute their claim before the Labour Court. Apart from McMullen’s contention which I have dealt with, two arguments were put forward to show that a wages dispute still continued after the 7th June. The first argument, which was also made to Mr. Justice Kingsmill Moore, was that two of the plaintiff’s employees always remained members of the Union; while the second argument, which appears to have been made for the first time in this Court, was that the wages claim in April extented to thirty-one of the plaintiff’s employeesthat in June twelve or thirteen of these employees although not in actual employment, had an expectation of future employment and that the wages dispute still remained in their case.
The 20th June was the date upon which Hugh Boyle, on receipt of a letter from McMullen, induced the workers in Irish Shoe Supplies (1946) Ltd. to refuse to handle the plaintiff’s goods. At this date, it is contended, Patrick Carolan and Joseph O’Reilly continued to be members of the Trade Union. Both these men signed the letter of resignation of the 7th June and also the confirmatory letter of the 13th June. Carolan says that after signing on the 7th June he went at once to Argue, the local secretary of the Union, and told him that he did not wish to leave the Union. The trial Judge does not expressly find that this statement is true, but I accept it as such. On the 13th June Carolan, however, signed the second confirmatory letter, but again on the 21st June, it is said, he wrote another letter stating that it was not his real desire to resign. In the face of the second confirmatory letter of resignation I think that it is impossible to hold that Carolan was a member of the Union on the 20th June and that Mr. Justice Kingsmill Moore was right in so holding. It may well be, however, that Carolan was accepted again as a member and that he was during the month of July a member of the Union. Joseph O’Reilly, who also resigned on the 7th June and the 13th June, rejoined the Union before the middle of July. The issue is not, however, exclusively membership of the Union, but whether there was in existence a trade dispute, and this issue is one of fact. Was there a live dispute about wages on the 20th June? So far as concerned the men who resigned from the Union, I think there was not. The existing wage dispute had come to an end so far as concerned the signatories to the letters of resignation.
At the hearing before this Court it has been shown by the elaborate table prepared from the plaintiff’s wages book that men who had previously been in the employmentbut were not actually in the employment on the 7th Junesubsequently were taken into employment. All these men, however, on becoming re-employed also resigned from the Trade Union. I cannot hold that there was an existing trade dispute with any of these men on the 20th June. None of these men showed any interest in the proceedings before the Labour Court. On the 24th July the Irish Transport and General Workers’ Union sought to prosecute the case of the plaintiff’s employees before the Labour Court, while the plaintiff strenuously denied that there was any wages dispute at all. The Labour Court appears to have heard evidence but never made any recommendation, and the proceedings before it seem to have dropped, at least so far as concerns the plaintiff’s employees.
If no trade dispute was in existence on the 20th June the fact that two of the plaintiff’s employees subsequently became members of the Union did not of itself revive the trade dispute, so as to make a trade dispute about wages on the 14th July and the 19th July, the two subsequent dates on which interference by the defendants with the plaintiff’s business has been proved.
At the trial of the action and at the hearing of the appeal the defendants sought to rely upon the trade dispute as being a dispute about wages between the plaintiff and his men. I am of opinion that no dispute about wages did exist in fact at the material dates and that no such trade dispute can be relied upon.
Mr. McMullen’s letter, dated the 10th June, 1949, addressed to the plaintiff is brief, but it contains a vibrant message. It reads:”We are informed that you have promised your men an increase and constant employment if they leave the Union. If this is true you will pay them for doing nothing as we will not allow our members in any part of the country to handle your products.” I think this letter means, and means only, one thing. It was written with the object of vindicating the Union’s alleged right of maintaining its own members free from persuasion by an employer to induce them to leave the Union. The Union in its dealing with the plaintiff did not insist that the plaintiff should employ only Union labour. The Union was satisfied if the plaintiff would raise no objection to his employees joining the Union and only sought for a notice to this effect to be displayed in the plaintiff’s factory. There may, I think, be occasions on which members of a trade union may have a trade dispute with an employer although no one of the latter’s employees is a member of the union; but it is not every dispute with a trade union which is a trade dispute. Was the dispute dealt with in the letter of the 10th June one connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person? On the evidence at the trial, the plaintiff did not make it a condition of employment that the men should cease to be members of the Union. In order to come within the protection given by the Trade Disputes Act the defendants must prove that a trade dispute did in fact existit is not enough to allege the existence of a trade dispute which did not in fact exist.
Mr. Justice Kingsmill Moore was of opinion that if a trade dispute did in fact exist and the acts complained of amounted to interference with the plaintiff’s business, there was no protection given to the defendants if the acts complained of resulted in a breach of contract with the plaintiff, provided that the contract was not a contract of employment, and he relied upon the observations of Russell J. in Brimelowv. Casson (1). Does this construction of the section mean that if a dispute exists between a building contractor and his men about wages, any inducement to the men to strike will be illegal because the building contractor will be unable to carry out his contract with a third party, the owner of the land? Interference with the business of a person must, I think, result in many contracts being broken. I am not convinced that the construction referred to is a sound one and wish to reserve an opinion upon this point. As I am of opinion that there was no trade dispute this question of construction does not arise on my view of the case before the Court.
The Silver Tassie Co., Ltd. v Cleary and Others
Supreme Court.
6 July 1956
[1958] 92 I.L.T.R 27
Maguire C. J., Lavery, Kingsmill Moore, O’Daly, Maguire J. J.
Dixon, J., in giving judgment in the High Court said that the issue in both cases was simple. It was whether a trade dispute had been shown to exist, so as to come within the protection of the Trade Disputes Act, 1906, and to permit the picketing of the plaintiff’s premises, which both parties conceded had occurred. If there were a dispute in the present cases it was solely connected with the question of the employment or nonemployment, and not with the terms of the employment or conditions of labour of any person. There were questions as to those matters at an earlier time but it was agreed that at the time of the present occurrences those matters had been cleared up.
The contention on behalf of the defendants was, as his Lordship understood it, twofold. First, it was said, the wide definition of trade dispute extended to cover any case where an employee objected to being dismissed or, having been dismissed, was refused reinstatement, independently of whether there was or was not a good cause for the dismissal or whether the employee had or had not any reasonable ground for objecting to the dismissal. That contention gave the widest possible scope to the definition.
Secondly it was argued on behalf of the defendants that if it were necessary for the employee to have a reasonable ground for objecting to the dismissal such ground existed in the present case.
Taking the second point first, his Lordship thought it quite clear that “trade dispute” must at least include a case where an employee contested his dismissal as being unjustified in the sense that there was no adequate reason for it or that the reason alleged was not the true or only reason. There might, of course, be other causes of dissatisfaction with the dismissal on behalf of the employee and his Union, such as the conflict with some trade union or policy. However, in the present case it seemed quite clear that a trade dispute as contemplated by the Trade Disputes Act, 1906, did exist.
It was the function of the court to decide whether such a dispute existed but it was not the function or right of the court to decide whether the attitude or belief of the employee or Union was a well founded one, except in so far as the complete lack of any reasonable basis for the particular attitude or belief might lead to the conclusion that it was not a genuine or bona fide one. The absence of bona fides would involve the absence of any genuine dispute.
There was no need, his Lordship said, to repeat the contents of the correspondence or to deal at length with the facts of the case. Put simply they were as follows: McK. was dismissed; he complained to his Union; the Union took up the case on his behalf. It was clear that both McK. and the Union felt he was being victimised. The Union also felt that Mr. Pinkerton was attempting to turn his premises into a non-Union house. The Union further related McK’s alleged victimisation as being a retaliation by Mr. Pinkerton because of certain negotiations which had taken place between himself and the Union at an earlier date. For those reasons and perhaps for others, the Union were not prepared to give full credence to the explanation that Mr. Pinkerton wanted to enter the business himself.
It was irrelevant to the issues to be decided whether regard was to be had to the plaintiff’s explanation as a true or a full one, or whether, on the other hand, regard was to be had to the Union’s view as accurate and correct. It was sufficient for the defendants if the belief were genuinely held and if there were any rational basis for the belief. His Lordship had not the slightest doubt that the belief was genuinely held and he could not say that it was wholly groundless. The Union had some reason to believe that at least two of their members on the plaintiffs’ staff were not as loyal trade unionists as they might have been, and that those members might easily be persuaded to leave the Union when the time came. They had also some reason to believe that the managing director of the company, Mr. Pinkerton, might have been contemplating freeing himself and his company from the necessity of conforming to trade union requirements and practice. It thus appeared that vital trade union principles were at stake and the best way of meeting the danger was to insist on the *29 reinstatement, as an employee, of a member of the union whom they felt they could trust to safeguard their principles.
Even if his Lordship considered the plaintiffs’ argument that the Union based their case on victimisation, the victimisation being read in the narrow sense of retaliation, the result was the same, for he felt that if a reason were necessary that was a sufficient one for contesting the dismissal and for seeking McK’s reinstatement.
His Lordship did not have to consider the first argument contended on behalf of the defendants. He said, however, that he doubted whether that point would ever arise for decision and might only be of academic interest if it did for any Union would always have some reason for its action even though the same may not be disclosed or easy to discover. If the Union had no reason for their attitude, their attitude would be irrational and he had no doubt that the principle laid down in Conway v. Wade that “A dispute must be definite and of real substance” would militate against them if they claimed the protection of the Trade Disputes Act of 1906.
I am unable to hold here that there was not a real dispute between the Union and the plaintiff company and accordingly must find for the defendants.
Concerning the conduct of the defendant Cleary, his Lordship found that there was nothing to show that he had in any way acted improperly, nor could he see that he had employed any illegal means to bring the staff out on strike.
Both actions were dismissed, but by reason of the attitude of the Union members in commencing to picket after the first order had been made, conduct which his Lordship said was wholly indefensible, he refused to make any order as to the costs in their favour.
From these decisions the plaintiff appealed to the Supreme Court.
O’Daly, J., delivering the judgment of the Supreme Court said that the case came to the Supreme Court by way of appeal from the judgment and order of Mr. Justice Dixon wherein he dismissed two actions brought by the plaintiff company against the defendants, members of the Irish National Union of Vintners’, Grocers’ and Allied Trades’ Assistants, who were engaged in picketing operations at the plaintiffs’ licensed premises the “Silver Tassie” at Loughlinstown.
Picketing commenced shortly after the dismissal of an employee of the Silver Tassie named H. McK., who was also a member of the aforementioned Union. Soon after his dismissal McK., backed by his Union, demanded to be reinstated by the plaintiff company but was refused. Picketing then commenced.
Upon two interlocutory hearings Mr. Justice Budd granted injunctions to the plaintiffs. At the trial of the action the defendants resisted these injunctions on two grounds: ( a ) they submitted that the Trade Disputes Act, 1906, gave a wide reading to the words “trade dispute”; so wide, in fact, that protection was given to any peaceful picket in a case where an employee objected to being dismissed, or, as in the present case, was dismissed and later refused reinstatement, even though there might or might not be good cause for the dismissal, or whether the employee had or had not good cause or reasonable ground for objection to the dismissal; ( b ) if good cause or reasonable ground for objection to the dismissal were necessary then there was such cause or ground in the present case.
It was submitted before the Court by counsel for the appellant company that in his judgment Mr. Justice Dixon went beyond matters in dispute in the proceedings. The court observed the fact that when the plaintiffs applied to Mr. Justice Budd for an interlocutory injunction in the first instance, a case was made that there had been victimisation to one of the employees. This was based upon the correspondence between the plaintiff company and the defendants before the hearing commenced. At the hearing, however, counsel for the defendants said that it was not his intention to rely on the point of victimisation. At a later date when a second application for a further injunction was being made the only issue raised was whether the Union’s demand simpliciter for re-instatement of an employee constituted a dispute within the meaning of the Act of 1906. Counsel for the plaintiffs submitted that neither the point of victimisation, nor the intention to create the Silver Tassie into a non-Union house, was raised as an issue by the defendants.
It was further submitted that in any event the belief by the defendants as to a state of facts was not conclusive; but the disagreement being as to the existence of certain facts, the Court was bound to go further and decide the facts, otherwise the defendants would be allowed to be the judges in their own cause. The definition of a trade dispute in *30 the Act did not extend to a dispute for which no reasons were given, which, it was argued, was the nature of the dispute that the defendants set up immediately before placing the second picket upon the company’s premises.
The Court was satisfied that the evidence showed that neither the Union nor the employee McK., were prepared to accept the manager of the plaintiff company’s explanation that H. McK. had been dismissed by reason of redundancy because Mr. Pinkerton (the Manager) had entered the business. Although the defendants in court made the case that a demand simpliciter for the re-instatement of an employee was sufficient in law to constitute a trade dispute without more, it was quite clear, and indeed Mr. Justice Dixon found so, that prior to the commencement of proceedings the attitude of the Union was ( a ) that the manager of the Silver Tassie was victimising McK. because of the new demands the Union had made on him, and ( b ) that Mr. Pinkerton was attempting to turn the Silver Tassie into a non-Union house.
It was provided by the Trade Disputes Act, 1906, that peaceful picketing of an employer’s premises was lawful, provided it was in the furtherance of a trade dispute. The Act defined “trade dispute” as meaning “any dispute between employers and workmen … which is connected with the employment or non-employment … of any person”. Despite the observation of Lord Parker in Larkin v. Long [1915] A.C. 814 at p. 832/3 that “the Act to the extent that it abrogates or curtails common law rights ought, according to the principles that had hitherto prevailed in construing Acts of the Legislature, to be construed with reasonable strictness and not to be given a meaning wider than the words used will justify”, it still remains that the language of the aforementioned definition is given a wide and general interpretation.
Mr. Justice Dixon has found as a fact that whether or not there is a trade dispute is a question of fact. That finding has not been questioned on this appeal but the plaintiffs have sought to circumvent the finding by submitting that the trial judge in his judgment went beyond matters in dispute.
We are asked to accept the proposition that the Act of 1906 protects a dispute which arises by virtue of a dismissal simpliciter for the re-instatement of a dismissed employee where no reasons are advanced for challenging the dismissal, but having regard to the attitude of the defendants prior to the commencement of proceedings at all in making an issue of the company’s refusal to re-instate H. McK. we do not feel that that state of facts meets the present case before us. Further we cannot agree with counsel for the plaintiffs’ argument that Mr. Justice Dixon went beyond matters in dispute in his findings in the court below.
The principal argument upon which the plaintiffs based their case in the court was that the belief by the defendants in the existence of a state of facts which induced them to cause a dispute does not make such dispute a “trade dispute” within the meaning of the 1906 Act, unless the court finds the facts to be as the defendants believe them to be, or to put this in another way, the Act cannot give protection to this dispute unless the court finds as a fact that the dismissal of McK. was an act of victimisation by the plaintiffs and that their purpose of so dismissing him was to turn the Silver Tassie into a non-Union house. No authority was cited for this proposition, but it was argued that unless the court finds that the reasons put forward for the dispute are well founded, the defendants were being allowed to be the judges in their own cause.
The real point at issue in the case was Mr. Pinkerton’s intentions in dismissing McK. Was he victimising his employee, or was he attempting to turn the “Silver Tassie” into a non-Union house? Whatever the reason was, the Union, supporting McK., decided to contest the dismissal and this they did by placing a picket on the premises.
The Trade Dispute Act, 1906, seeks one requirement, and one requirement only, i.e. that the dispute shall be one connected with a person’s employment or non-employment.
Conway v. Wade [1909] A.C. 506 is authority for the proposition “that a mere personal quarrel or grumbling or an agitation will not suffice; it must be fairly definite and of real substance”; per Lord Loreburn, L.C., at p. 506. Further than this the cases have not gone. The dispute must be genuine and not merely colourable. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona-fides of the parties. The Court took the view that to hold that there could not be a trade dispute about the existence of a state of facts unless the court had first found that such a state of facts existed would be to remove from the protection of the Act a large number of disputes and to impose on *31 the definition of a trade dispute a limitation not found anywhere in the Act.
The Court made the observation that the Trade Disputes Act, 1906, was not machinery for the resolution of trade disputes. The Act acknowledged that such disputes exist and, as it were, held the ring for the contestants, but beyond that it did no more. Legislation had been passed since the 1906 Act for the purpose of resolving trade disputes and machinery for arbitration and conciliation had been set up for that purpose.
The Court thought that the trial judge was right not to determine the issues between the Union and the plaintiff company; it was sufficient that he should be satisfied that the dispute between the parties was bona fide. The Court was of opinion that the dispute raised by the Union was H. McK’s dismissal and the refusal by Mr. Pinkerton to re-instate him. It may well be that the matters of victimisation and the alleged attempt to turn the Silver Tassie into a non-Union house were the motives which led the defendants to raise the dispute but the trial judge looked upon those two issues for one purpose and one purpose only, i.e. to ascertain whether the dispute was a genuine one or not. He found that the dispute was bona fide and in that the Court took the view that he was right.
The Court was of opinion that the finding and order of Mr. Justice Dixon, in which he dismissed both actions, ought to be affirmed and in the circumstances of the case the Court did not think it necessary to express any view on the point as to whether a dismissal simpliciter was sufficient to constitute a dispute to gain the protection of the Act of 1906 and no more.
British & Irish Steampacket Co. Ltd. v Desmond Branigan & Others
High Court.
23 February 1956
(1955 No. 1332P.)
[1956] 90 I.L.T.R 98
Dixon J.
January 31, February 1, 2, 3 and 23, 1956
Dixon J.:
His Lordship in giving judgment recalled how the plaintiff’s ship arrived at Newry on the 16th November, 1955, and the events which followed.
Having stated the terms in which the telegram received by the crew was framed he went on to say that the difficulty of the crew appeared to have been as to the exact effect of the command to report to Dublin office the next day, that is, whether the bosun only or the whole crew were to report to Dublin. They seemed to have taken this part of the telegram in what seemed to His Lordship to be its ordinary meaning, viz., that it was a matter of reporting in person rather than by telephone. The crew were, however, in no doubt as to the meaning of the rest of the telegram. They read it as meaning that the ship was not to sail from Newry and that they were so to inform the Master. His Lordship said that he had no doubt that was what it did mean and what it was intended to mean. This necessarily involved a deliberate refusal by the crew, on the instructions of the General Secretary of the Union, to obey the lawful orders of the Master as to sailing. His Lordship was satisfied on the evidence that the Master did ascertain from the crew that they were not prepared to obey his orders and did point out to them the serious nature of their conduct.
Apart from being an offence under Maritime law, this was a serious breach of contract on the part of each member of the crew and would probably have justified summary dismissal. The matter, however, went further as the crew abandoned and discontinued the service to which each of them had articled himself, without giving the requisite or, indeed, any notice. The operative provision in the case of each of them, by which the agreement might have been terminated, was the requirement, under the Articles, of notice in writing or verbally given twenty-four hours or more before the ship sailed from a port in the State. By its terms, this was inapplicable to Newry, but, even assuming that the reference to “a port in the State” was not intended to exclude a port such as Newry or, assuming that a custom existed that notice could be given at a port within the limits of what is called “the home trade”, it was quite impossible, when the telegram arrived, to give the requisite length of notice.
The General Secretary, in his evidence, tried to maintain the impossible contradictory position that, while the crew were to refuse to sail the ship and break their contracts in this respect, at the same time they were to give the requisite notice of termination. He contended that this was the meaning of his telegram, particularly the portion as to giving “the necessary notification to Master”. His Lordship said he was satisfied that this portion of the telegram meant nothing of the kind and that the General Secretary’s mind was not directed to any question of giving notice. His letter, of the same date as the telegram, advised the plaintiff company that it had been decided by the Executive Committee of the Union to withdraw the labour of the crew of the “Inniscarra”; and this suggested primarily a termination of service without further notice and irrespective of whether notice was requisite or not. His Lordship was further satisfied that what was conveyed to the Master on the following *101 morning (the 18th) as a result of the telephone call to the General Secretary was that the Union said the crew were to be paid off. There was evidence of only two members of the crew, neither of whom was the person who telephoned to the General Secretary, and their evidence was not very precise or satisfactory. His Lordship did not accept the evidence of the General Secretary that, in that telephone conversation, he advised or instructed the crew to give the requisite notice. In the circumstances then existing it would have been a quite futile and pointless gesture and completely inconsistent with the clear implication of the telegram and with the course of the correspondence with the plaintiff company. His Lordship was of opinion that at that stage of the matter there was no doubt in the General Secretary’s mind or in the mind of any member of the Executive Committee that a trade dispute existed and that the protective cloak of the Trade Disputes Act would extend to cover any breach of contract. It was, thus, a matter of no relevance or importance to ensure compliance with the terms of any contract. It was only since the question was raised, and doubt cast, as to whether the dispute was actually one that falls within the protection of that Act, that it became material to consider whether a breach of contract had occurred and whether that breach had been induced or procured by the defendants.
His Lordship went on to say that he had not overlooked one of the arguments for the defendants founded on the fact that the Master when faced with the inevitable, bowed to it and paid off and signed off the crew in the same manner as if they had been regularly discharged. The situation was an entirely novel one and the Master met it in the only way that seemed possible to him. To construe his acts as some acquiesence on his part, and through him on the part of the plaintiff company, in the crew leaving the ship would be wholly unreal and a travesty of the true position. The reality of the matter was that, on the instructions of the General Secretary and the Executive Committee of their Union, the crew refused to obey the lawful orders of the Master and withdrew their labour in breach of their agreements. The phrase used in the letter of 17th November from the General Secretary, contemporaneous with his telegram, that it had been decided to withdraw the labour of the crew was unambiguous. It was significant that the letter of 18th November from the General Manager of the plaintiff company to the General Secretary of the Union, which crossed the letter of 17th November, used precisely the same phrase. In it, the General Manager protested “at the action of your Union in withdrawing the crew of our m.v. ‘Inniscarra’”. His Lordship did not think there was any doubt on either side as to what had been intended or as to what had occurred.
The prior steps in the matter had been, firstly, the intimation on 29th June, 1955, that a dispute existed between the Union and the Carlingford Lough Commissioners and that shipowners might be requested to divert their ships to ports other than those in Carlingford Lough; secondly, the communication on 22nd July, 1955, of a decision of the Executive Committee to declare “black” all ships utilising the services of Carlingford Lough; and, thirdly, the intimation, on 29th October, that as from 14th November all vessels using Carlingford Lough and vessels belonging to companies so doing would not receive such services at Dublin Port as were administered there by members of the Union. With this background, the withdrawal of the labour of the crew at Newry fell into place as the fourth step and as a logical development of the policy of the Union.
The contentions were advanced, but not very strongly, that the actions of the General Secretary may have gone beyond anything contemplated or sanctioned by the Executive Committee and also that only those members of the Executive Committee actually present at meetings could be held to be responsible. The general consideration applied to both these contentions that the General Secretary purported to act with the full approval and authority of the Executive Committee and no member of the Executive Committee, although they had all been sued, had attempted in any way to disassociate himself from what was done or to repudiate the actions or decisions of either the General Secretary or the Executive Committee. The whole course of the correspondence and of the Minutes of the Executive Committee meetings was against both contentions. It was only necessary to make particular reference to the Minutes of the meeting of 16th November, according to which the General Secretary reported that the “Inniscarra” had sailed into Newry that day and, consequently, it was necessary, if they were to implement their threats and policy, that the crew of this ship be called out. The final decision of the meeting was to act along the lines suggested by the General Secretary.
His Lordship stated that he found, therefore, that the members of the Executive Committee conspired, that is, agreed between themselves to induce and procure the breach *102 of the several contracts which the members of the crew had with the plaintiff company and that such breach was induced and procured by the Executive Committee. As the General Secretary is ex officio a member of the Committee this finding includes him.
This finding brought the case directly within the well-established principle that “a violation of legal right committed knowingly is a cause of action.—It is a violation of legal right to interfere with contractual relations recognised by law, if there be not sufficient justification for the interference,” per Lord Macnaghten, Quinn v. Leathem [1910] A.S. 495 at p. 510. The defendants, however, contended — and this was the real substance of the case—that a trade dispute existed within the meaning of the Trade Disputes Act, 1906. By section 2 of this Act, “an act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills”. If a “trade dispute” existed, this provision supplied the “sufficient justification” referred to in the principle stated above and would have afforded a complete answer for the defendants.
The question was did a “trade dispute” exist? This phrase was defined in section 5 of the Act as meaning “any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person”. The dispute which initiated the train of events under consideration concerned the employment by the Carlingford Lough Commissioners of a man to whose qualifications for the particular post his fellow-employees, members of the Union, objected. In so far as this clearly concerned the employment of a person, the dispute was to that extent within the definition. That, however, was not sufficient, because the “workmen” who must be at least one of the parties to the dispute could only be workmen of the type contemplated by the Act and therein defined as meaning “all persons employed in trade or industry” (section 5). In this case, the persons alleged to be “workmen” within this definition, were the former employees of the Carlingford Lough Commissioners and the effect, in His Lordship’s opinion, of the majority decision of the Supreme Court in Smith v. Beirne 89 I. L.T.R. 24, was that their status must be determined by enquiry as to the nature of the activities of the Carlingford Lough Commissioners. In other words, if the Commissioners were not engaged in trade or industry, their employees could not be regarded as being employed in trade or industry.
His Lordship stated that these Commissioners are a statutory body incorporated under the Pier and Harbour Orders Confirmation Act, 1864, for the purpose of executing and maintaining the works specified in the Carlingford Lough Provisional Order. These works comprised the following:
“(1) To blast, dig, cut, dredge, scour, cleanse, and remove the rocks, sand, clay, mud, and other substances in the bar or at the entrance or mouth of Carlingford Lough.
“(2) To erect, fix, lay down, and maintain any beacons, buoys, lights, warping posts, moorings, or other works necessary for the accommodation and guidance of ships and vessels in, into, or from Carlingford Lough, or for the navigation thereof, and to alter or abolish the same from time to time as may be necessary”.
These were activities contemplated and authorised by the instrument creating the Commissioners and they had been the activities, and the only activities, of the Commissioners since 1864. No advantage had ever been taken or use made of a provision in the Order that the Commissioners should be a pilotage authority and local authority within the meaning of the Merchant Shipping Acts, and should have all the powers conferred by those Acts on pilotage authorities and on local authorities. Any possible relevance of reference to this provision therefore disappeared. The expenses of the Commissioners had always been defrayed out of rates, tolls, and dues which they were empowered to demand and receive from the ships, vessels or other craft resorting to the Lough.
The scope of the phrase “trade or industry” used in the Act of the 1906 had never been precisely defined, but, in several cases, there were dicta to the effect that the Act should be given a somewhat strict construction. These dicta were referred to, with approval, by Kingsmill Moore J., in Smith v. Beirne 89 I. L. T. R. 24, at p. 35, and the other members of the majority of the Court in that case adopted a similar approach to the Act. Viewing the Act in the same way, his Lordship said he found it impossible to accept that it could be held to have contemplated, in the phrase used, activities of the kind carried on by the Carlingford Lough *103 Commissioners which consist solely in making and keeping the navigation of the Lough easier and safer. His Lordship said that in the ordinary use of language he thought it would occur to very few people that such an activity could be characterised a trade or an industry.
The fact that by section 9 of the Pier and Harbour Orders Confirmation Act, 1884 (47 and 48 Vict., C. 216), the Commissioners were given power to let on hire their steam or other vessels, matters, and things, mentioned in section 22 of the Order of 1864 did not change his opinion. This was merely an extension of the power given in that section 22 to sell and dispose of various articles and materials which, by the section, they were empowered from time to time to purchase, lease, provide or hire. These were merely ancillary and necessary powers to enable the Commissioners to carry out the purposes of the Order and were, in no sense, a main object or activity, either actual or contemplated, of the Commissioners.
In his Lordship’s view, the Commissioners could not be regarded as being engaged in trade or industry within the meaning of the Trade Disputes Act, 1906, and their employees, accordingly, were not employed in trade or industry and were not, therefore, “workmen” within the meaning of that Act. One of the necessary parties to a trade dispute was lacking and no “trade dispute” existed. Continuing, his Lordship said that in Smith v. Beirne supra he had already rejected the view that the Union, as such, could supply the place of the missing and essential party, and he adhered to that view. In the Supreme Court in that case, this point was left open by the majority of the Court.
A secondary dispute, sufficient to justify the acts of the General Secretary and the Executive Council, was alleged to have arisen with the plaintiff company at or before the time of the crew leaving the ship at Newry. The only dispute with the plaintiff company that appeared on the evidence or the correspondence was as to the ports to which the ships of the plaintiff company might trade. This dispute, even though forced by the Union on the somewhat unwilling crew—who would be “workmen” within the meaning of the Act—was not concerned with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person. It was not, therefore, a trade dispute.
His Lordship thought the plaintiffs were entitled to the injunction which they sought and also to damages for the wrongful interference with their legal rights.
As to damages, a plaintiff must take every reasonable step to minimise his loss. In the present case, it was contended on behalf of the defendants that the major part of the claim by the plaintiffs in respect of damages was unsustainable. The grounds of the contention were alternative. One was that, as the crew could lawfully have given twenty-four hours notice to terminate their agreements, damages should be limited to whatever loss occurred, or might have occurred, up to the expiry of such notice. The other was that, instead of leaving the vessel at Newry, the plaintiff company could have obtained a new crew within a short period and that damages should be limited to that period.
The defendants were, in law, responsible at least for the loss which was the natural and probable consequence of their acts, subject to the obligation of the plaintiffs to keep that loss as low as reasonably possible. On the first ground mentioned above, it might be pointed out that the crew did not in fact give notice and, unless the defendants were to intervene would probably not have given notice at any time material. The argument, therefore, was that, because the defendants could have acted lawfully, they were only to be held liable for their unlawful acts for the period which would have been necessary for lawful action. This was not a sound contention as it ignored the circumstances that it was the unlawful act that was the cause of action.
The first ground, therefore, was unreal. The second ground, as to securing a new crew, was wholly divorced from reality. It was quite clear that the plaintiff company could only have obtained a new crew composed of non-union labour or of members of unions other than that of the defendants. At the same time, there was at least an undertaking, if not a binding agreement, in existence where by the plaintiff company was to notify all vacancies on their ships to the union controlled by the defendants. His Lordship said that in his opinion, with or without such an undertaking, any attempt to recruit a new crew would inevitably have led to an increasingly wide extension of the trouble and to a far more serious and possibly crippling loss to the plaintiffs. The docker members of the Marine, Port and General Workers’ Union in other ports were already pledged to sympathetic action which would have involved any other ships of the plaintiff company. It was more than probable that the labour of the crew of these other ships—mostly composed of members of the Union—would have been withdrawn and the whole fleet of the plaintiff company, some eight or *104 nine vessels, immobilised for a long period. The resulting disclocation of trade and the resulting unemployment would have been serious. The loss to the plaintiff company—some part of which the defendants might ultimately have to bear—would have many times exceeded the actual loss incurred.
The plaintiffs, in taking no steps to replace the truant crew, were in fact minimising the loss by avoiding the probable occasion of a much greater one.
The plaintiffs, accordingly, were entitled to damages for the loss sustained by reason of the “Inniscarra” having been kept idle at Newry from 17th November, 1955, until whatever date she left Newry under the provisional arrangement come to between the parties at the end of January, 1956. This loss must include loss of prospective profits. Figures were proved amounting to a considerable total, but the hearing of the action was chiefly concerned with the questions of principle and the other matters involved. It might, therefore, be more desirable, although not essential, to afford the parties a further hearing limited to the amount of damages, now that the question of the proper measure of damages had been determined. His Lordship said he proposed to relist the case on a suitable day for that purpose. The injunction would be granted and take effect immediately.
The Silver Tassie Co., Ltd. v Cleary and Others
High Court.
24 January 1956
[1956] 90 I.L.T.R 87
Budd J.
January 23, 24, 1956
Budd J., in the course of his judgment stated that the plaintiffs are a limited liability company of which Alexander James Pinkerton is the managing director. The defendant, Cleary, is the Assistant Secretary of the Irish National Union of Vintners Grocers and Allied Trades’ Assistants, and the other named defendants are all members of that Union. The matters before this Court arise by reason of the dismissal of McKiernan, an employee of the company, and a member of the afore-mentioned Union.
The plaintiffs seek from this Court an interlocutory injunction against the defendants to restrain them from picketing, interfering and otherwise obstructing the plaintiff’s premises.
On a motion of this kind no final determination is made. Where, however, a person seeks relief in the form of an interlocutory injunction he must make a prima facie case of the right which he wishes to assert, and whether there are substantial grounds or not. I must be satisfied that a probability exists against the defendants defeating the plaintiffs’ claim in the final issue.
The plaintiffs, in the normal course of events, have the right to pursue their business free from picketing, and free from any attempt by any person to induce a breach of their employees’ contract of service with them. I am satisfied that in this case they have shown a prima facie legal right so to do.
The defendants, on the other hand, are entitled, by virtue of the Trade Disputes Act, 1906, to picket, in a peaceful manner, the premises of the plaintiffs, provided that a trade dispute exists between the Union and the Company. They may further induce a breach of contract of employment by the employees of the company with it but only on the same conditions as I have mentioned above. This inducement however must not amount to threatening acts or coercion.
His Lordship stated that there were thus two matters which he must determine in this case: (1) are there substantial grounds for doubting that a trade dispute exists; (2) did the Secretary of the Union, Cleary, a defendant in this action, exceed his privilege by adopting threatening or coercive methods in the manner in which he induced the employees of the plaintiff company to break their contract of employment?
As to the first of these issues, I may say at the outset that there is no suggestion whatsoever that McKiernan’s dismissal was not in accordance with the law. Legally Pinkerton acted well within his rights in the manner in which he dismissed McKiernan. The Union did, however, protest at the dismissal but the plaintiffs contend that the Union based their objection on an allegation of victimisation. The plaintiffs argue that no evidence of victimisation was shown to this Court, and further that the uncontradicted evidence showed that the only reason why McKiernan was dismissed was in order that Pinkerton could take an active part in his own business. The plaintiffs, therefore, contend that the dispute is without any basis and that therefore no dispute exists at all.
The defendants rely on the fact that a trade dispute exists by reason of a dismissal simpliciter and they say further that the Union communicated this fact to Pinkerton.
I must ask myself whether or not the evidence should lead me to the view that the dispute was based upon an alleged act of victimisation.
Let me refer to the case of Quigley v. Beirne (unreported). Here there was a dismissal without any explanation being given. It was held by reason of the fact that no reasons for the dismissal were given a dispute would arise. It seems quite clear to me that a trade dispute would also arise if reasonable evidence of victimisation were shown to this Court.
I am satisfied that the Union did in fact base their dispute with the Company upon an alleged act of victimisation, and that the subsequent negotiations were upon this basis. I am further satisfied that Pinkerton’s in *89 tentions were bona-fide, and that the Union did not contest them. No evidence of victimisation has been shown to this Court, and accordingly the defendants have relied upon a set of facts which did not exist and there is thus no dispute at all.
A dispute must necessarily require controversy, there must further be contending parties. No other ground upon which a dispute might be based, other than alleged acts of victimisation, were disclosed to Pinkerton, and accordingly there cannot be controversy on this issue between him and the Union.
I have thus come to the conclusion that the defendants have failed to show to this Court that a trade dispute exists and because of this I hold that their picketing of the plaintiffs’ premises is unlawful.
The defendants have argued that this is a futile application by reason of the fact that if they are restrained from picketing to-day they could commence picketing again tomorrow upon different grounds than have been shown to this Court. I am of opinion that this is not a proper basis on which I should refuse the plaintiffs the relief to which they are entitled by reason of the matters before me in this action.
Accordingly, I grant an interlocutory injunction against the defendants in the terms of the notice of motion.
As to the second issue it would appear from the uncontradicted evidence of the plaintiffs that the defendant, Cleary, exceeded his privileges by the actions which have been described to me. I am satisfied that his conduct did amount to acts of threats and coercion, and resulting from this the employees of the plaintiff company broke their contracts of employment and the effects of these actions still operate. I thus grant a further injunction in the terms sought.
The defendants have asked me for a stay on this order. The object of granting such an order as this is to maintain a status quo until the hearing of the action. To grant a stay would make nugatory the order I have just made and will take from the plaintiffs the relief to which they are entitled at this stage of the proceedings. I refuse the application for a stay on the order.
Ryan v. Cooke and Quinn
[1938] IR 512
Johnston J.
JOHNSTON J. :
30 May
This is an action which is brought by Mrs. Agnes Ryan, who is the owner of a chain of dairy shops in and around Dublin which are collectively called the “Monument Creamery,” to restrain the defendants as the agents of a trade union called the “Irish Union of Distributive Workers and Clerks” from picketing her premises in Henry Street, Dublina street which is probably the busiest and most crowded street in the city.
The plaintiff alleges that this picketing is not a legal or permissible one within the meaning of the Trade Disputes Act, 1906, that there is no justification for it whatever, and that it has seriously damaged her trade and impeded her business.
I had occasion quite recently in the case of Fergusonv. O’Gorman (1) to take into consideration the provisions of the Act of 1906, and I decided that the picketing of shop premises in the city of Cork was not unlawful merely by reason of the fact that it took place in a public street upon which the shop in question abutted. That decision was upheld by the Supreme Court.
Some years ago the plaintiff’s husband opened a number of shops in Dublin for the sale of dairy produce, particularly cream. These shops were remarkably successful by reason not only of their bright and attractive appearance and the scrupulously clean way in which they were kept, but also of the businesslike and reliable lines on which they were run. When Mr. Ryan died the plaintiff carried on the business with such success that the shops increased considerably in number. The trading success of Mrs. Ryan as an asset of the business life of Dublin is, in my opinion, a matter of materiality in regard to the decision of this case. None of the young ladies and girls who worked as assistants in these shopscertainly, at any rate, none of the assistants in the Henry Street establishmentwere members of any trade union, and the officials of the Irish Union of Distributive Workers and Clerks, which claims that it is the only organisation in Dublin which sees after the rights of shop assistants, endeavoured in 1935 to get them to join as members.
First of all, a letter, dated July 31st, 1935, was sent to “The Staff, Monument Creameries,” inviting them to attend “a meeting of your staff” to be held at the headquarters of the Union on August 6th, 1935. None of the staff attended the meeting. Then a letter was written to Mrs. Ryan, asking that she should receive a deputation of the trade union, and the interview took place at her head office in Lower Camden Street on September 24th. She appears to have received the deputation willingly and sympathetically, and gave them full permission to canvass her assistants.
The assistants in the Henry Street shop were accordingly approached, and each was presented with a form of application for membership of the society, a date being fixed for the return of the form. I have no doubt that at this interview all the persuasive arguments were addressed to these assistants that could be used by the representatives of the trade union, and that they did everything possible, within the law, to persuade the young ladies to become members of the society; but it was all of no avail, and the assistants, or most of them, politely returned the forms unsigned which they had been given. In October a further letter was sent to the Staff from which it would appear that the trade union had no quarrel whatever with Mrs. Ryan. The letter says:”Officials of this Union have discussed with Mrs. Ryan the question of employing a trade union staff, and it was decided that you should be given another opportunity to become a member of this Union.” They are then invited to attend a meeting at Cavendish House, but none of them accepted the invitation. The matter then appears to have dropped by mutual consent.
The matter was re-opened by the trade union in 1937, when four letters were sent to Mrs. Ryan, dated respectively May 20th, June 26th, July 8th and August 25th. Mrs. Ryan did not reply to any of these letters, and, having considered them all with the greatest care, I cannot justly say that any one of them makes any request or asks any question to which it was necessary to reply. The first speaks of the failure of the trade union to persuade any of the members of the staff to join the Union, and then a statement is made that the trade union would be”reluctantly compelled in the near future to take whatever steps that are necessary to bring to the notice of the public the conditions in your firm.” This is a very vague statement, both as to “the conditions in the firm” and as to the “steps” that the trade union had in contemplation. There was therefore nothing in this letter which called for a reply. The second letter speaks of “our efforts to have the members of your staff become members of this Union.” It concludes: “My committee are anxious to be favoured with your co-operation and would be obliged for a reply by the 2nd prox.”
The third letter was in the following terms: “It has been reported to my Executive Committee that notwithstanding constant appeals made to the members of your staff in your various branches to join this Union and to a request made to you by the Branch Committee that you would agree to the employment of a trade union staff and the observation of trade union conditions, no progress has been made. I am to say that it is the duty of this Union to enrol in its ranks all employees in shops and offices in Ireland, and we are determined at all costs to resist the introduction of non-union labour into shops. I am therefore to request that you will, in course of post, notify me that you are agreeable to the employment of a trade union staff, failing which our members, who have urged us to take this action, will be reluctantly forced to place a picket on your premises to inform all whom it may concern that the staff employed by you are not members of a trade union and that trade union conditions are not observed in the employment.”
The fourth letter was a reiteration of the third. It says: “Unless we have an assurance from you by the 1st prox. that you will employ a trade union staff and observe trade union conditions of employment, we will be reluctantly compelled to place a picket on your premises. We trust it will not be necessary to take this drastic action.”
Now, these letters are of the vaguest possible character, and do not suggest any matter in controversy between Mrs. Ryan and the Union. They ask her to agree to the employment of “a trade union staff”; but she had never refused to employ a trade union staff. On the contrary, she had in 1935 agreed to do so, and had even given the trade union the fullest opportunity of enlisting her employees as members of the Union, so much so that, as I have already pointed out, the trade union expressed themselves in the letter of October, 1935, as quite satisfied with her attitude. They asked for her “co-operation”;but they do not suggest in what way she was to co-operate. They cannot mean, I hope, that she was to dismiss her entire staff. Surely this trade union, which exists to help the workers of this city, did not intend to suggest to Mrs. Ryan that she should dismiss these poor girls, who were trying honestly to make a living, and throw them out on the streets. I really do not think that they intended that that shocking thing should be done. How, then, is Mrs. Ryan to co-operate, apart from what she had already done?
Further, she is asked to observe trade union conditions of employment, but there is not a hint as to the conditions of employment that the trade union considered she was not already observing. A number of the young ladies were examined before me as witnesses, and they are all loud in their praises of the way in which they are treated as regards their remuneration, their hours (which in some respects are even better than the hours of other workers), their hours of leisure, and the food with which they are supplied. Indeed, when they were being examined as witnesses it struck me that their cheerfulness and obvious contented demeanour stood out in striking contrast to the gloom and unhappy countenances of the trade unionists who were examined on behalf of the defendants.
But that is only a secondary issue. The point of these letters is this that nowhere is it suggested what the conditions are which Mrs. Ryan was not observing, and there is no request as to how she is to rectify matters.
In my opinion no trade dispute existed which would have justified the trade union in placing a picket on Mrs. Ryan’s premises in Henry Street, and the reliance of the defendants upon the provisions of the Trade Disputes Act is of no avail. A trade union cannot create a trade dispute simply by declaring that a trade dispute exists, thereby giving themselves the right to adopt “the drastic action” (as they themselves call it) of putting a picket on any business premises that their eyes alight upon.
But the placing of this picket upon Mrs. Ryan’s premises was unlawful in other respects. I may mention one or two. The Act of 1906 provides that the work of the picket must be done “peacefully.” Now, it is admitted that in this case the persons picketing carried banners or posters which set out in glaring type this announcement: “This firm refuses to employ trade union labour. Support fair traders.” This was a falsehood of a most dangerous type. Mrs. Ryan had never, by act or word, refused to employ trade union labour and it cannot be described as a”peaceful” way of “communicating information” to disseminate a falsehood. Furthermore, the trade union had no right in the course of carrying out a picketing of a business firm to recommend the public to go to a rival shop. Sect. 2 of the Act does not suggest any such procedure. On another placard the falsehood was repeated:”Trade disputeMonument Creamery refuses to employ trade union labour.” This was even more dangerous than the first poster, because it suggested, in designedly ambiguous language, that a dispute existed in the Monument Creamery between the firm and its workers and that the firm had dismissed employees who were trade unionists. That is the construction which the ordinary passer-by in this busy street would hastily put upon the announcement, and the result of course would be very injurious to the plaintiff. The public would of course not know that the most perfect relationship existed between the Monument Creamery and the entire staff, that no dismissals had taken place, and that the conditions of employment were most favourable and acceptable to the staff.
I may say also that I am not entirely satisfied with the evidence of the defendants, who stated that they gave no verbal information to the public, but merely pointed, in dumb sorrow, I suppose, to the placards. If that matter were more fully investigated I am afraid that it would scarcely be borne out by the facts. I doubt also if the choice of Henry Street, the most congested street in Dublin, rather than Lower Camden Street, where the headquarters of the firm are situated, was entirely innocent.
This case depends almost entirely upon the facts that have been proved as applicable to the provisions of the Act of 1906, and the cases that have been cited are not of much importance. In the case of Ward, Lock & Co., Ltd.,v. Operative Printers’ Assistants’ Society (1), no question of law is decided, and the same may be said of Dallimore v.Williams and Jesson (2). The Court of Appeal simply said that there was no evidence to support certain findings of a jury, and a new trial was directed. The matter involved in these two cases is more clearly brought out in the short reports which are to be found in the 57th volume of the Solicitors’ Journal at p. 77, and in the 58th volume at p. 470, respectively.
The case from which I have got most assistance is that of Conway v. Wade (3), in which the House of Lords discussed whether or not a trade dispute had been proved under the particular circumstances in that case, and certain principles were laid down by the members of the House who heard the case which are of the highest importance. Lord Loreburn L.C., in regard to the existence or nonexistence of a trade dispute said (at p. 510) that “a mere personal quarrel or a grumbling or an agitation will not suffice. It must be something fairly definite and of real substance.” “If the Act [of 1906] is to be interpreted or applied,” he added, “in the view that stirring up strife is the aim and object of any part of it, then indeed it will be a foundation of bitter waters.” Lord Atkinson (at p. 517) said:”In order that a dispute may be a trade dispute at all, a workman must be a party to it on each side, or a workman on one side and an employer on the other, and an act done in furtherance of a dispute is not protected unless the dispute be one of that character. It is help, assistance, or encouragement to such a dispute that the Legislature apparently had in view when it used the words ‘in furtherance.’ Must it not, when it uses, in juxtaposition with these words, the words’ in contemplation,’ be held to have had in view a dispute which must, at the time the act it designed to protect was done, have been, at all events, ‘thought of’ by some person who should be a party to it when it arose, if it was to be a trade dispute within the meaning of the Act? Otherwise an intruder, such as Wade, would be shielded from liability simply because of his own mental outlook, however peculiar that outlook might be, and however unknown to, or unshared in by, others.” At At p. 518 Lord Atkinson said further:”It is impossible to suppose, I think, that the Legislature ever intended that where perfect peace prevailed in any factory or establishment, and an intruder, a mere mischief-maker, actuated by greed, or some feeling of revenge, interfered, and by threats and molestation stirred up strife and disputes which neither employer nor workmen theretofore thought of, he should be made irresponsible because of the very mischief he intended and hoped to stir up.”
This case was applied by the Irish Courts in the case of Barton v. Harten (1).
Struck by the difficulties that I have been pointing out, counsel for the defendants then put into the witness-box a number of young men, all trade unionists, who gave evidence to the effect that they “objected” to the conditions which, according to them, prevailed in the plaintiff’s premises; but these persons did not suggest that they ever had any dispute with any one, or that they or any one else ever took part in any dispute. Their evidence in my opinion amounts to no more than an expression of their”mental outlook” which, as Lord Atkinson points out, would not have shielded them from liability if they had taken part in this picketing.
I may say that I am in entire agreement with Mr. Kelly as to the principles of trade unionism and as to the necessity for the continued existence of trade unions; but there is not a word in the evidence which suggests that Mrs. Ryan is not equally in accord with those principles, or that she does not thoroughly believe in the continued existence of trade unions.
For the reasons that I have stated I am of opinion that the provisions of the Trade Disputes Act, 1906, afford no protection to the defendants for what they did. Their conduct was wrongful, whether it is viewed from the point of view of conspiracy or of nuisance. Nothing could have been more damaging than the picketing of premises in a congested thoroughfare like Henry Street, with the display of placards upon which a false announcement to the public was made, coupled with the presence of the police, who would give a sort of official sanction to the picketing in the eyes of some people and a sort of suggestion of a row in the eyes of others. The mental intelligence and the moral stamina of the people who frequent Henry Street in such crowds are of very varying quality, and probably the majority of the passers-by would not be in a very discriminating mood. I rather fancy, too, that Mrs. Ryan, in the evidence that she gave as to the effect of the unlawful conduct of the defendants upon her business, minimised rather than exaggerated the loss that she had incurred.
There must therefore be an injunction in the terms of the statement of claim, with costs, including the costs of the motion.
Esso Teo. v. McGowan
FitzGerald C.J. [1974] 1 I.R. 151
Supreme Court
FITZGERALD C.J. :
The defendant was employed by the plaintiff company in the year 1960 as a lorry driver, and he continued in that employment up to the month of May, 1966. His employers at that time being, apparently, not satisfied with his performance of his duties, suspended him. Following the intervention of the defendant’s trade union, and a reference to a conciliation conference arranged by the Labour Court, he was re-employed by the plaintiffs on a probationary basis for a period of six months. The plaintiffs, being still dissatisfied with the way in which the defendant performed his duties, dismissed him on the 24th March, 1967. The defendant disputed the right of the plaintiffs to dismiss him, and the matter was referred to the Labour Court on the 15th June, 1967. The Labour Court decided in favour of the plaintiffs and subsequently, in July of that year, his trade union declined to bring the matter any further on his behalf. In September, 1967, the defendant, through his solicitors, made a demand upon the plaintiffs to be reinstated. This demand was refused. The defendant apparently then decided to prosecute his dispute on his own behalf and he, and a number of his supporters, proceeded to picket the plaintiffs’ premises in Cork on the 31st January and the 1st February, 1968.
On the day that the defendant commenced to picket the plaintiffs’ premises, the plaintiffs instituted these proceedings against him and claimed an injunction to restrain him from picketing, and on the same day the plaintiffs applied ex parte to Mr. Justice Kenny for an interim injunction which was granted. On the 5th February, 1968, Mr. Justice Kenny heard an application by the plaintiffs for an interlocutory injunctionboth parties being represented on this hearing. The defendant’s counsel then gave an undertaking that the defendant would not picket the plaintiffs’ premises pending the hearing of the action and, consequently, no order was made on the application for the interlocutory injunction.
After the 5th February, 1968, both parties appear to have been inactive. The pleadings were not delivered in time, as prescribed by the rules, and the action did not come to hearing before Mr. Justice Henchy until the 13th June, 1972. The details of the progress, or lack of progress, in bringing the case to trial have been dealt with in detail in the judgment of Mr. Justice Budd, and I find it unnecessary to enumerate them.
In the interval between the 5th February, 1968, and the 13th June, 1972, the defendant had been occupied first of all for a period of some nine months driving a taxi, and subsequently for a period of three years he was employed in Cork by the Mass Radiography Board as a driver technician. He ceased to be so employed in January, 1972, not because he was dismissed but because his employers then proposed to transfer him to Dublin and he was not prepared to agree that he should be so transferred.
In my opinion, when the action came to trial before Mr. Justice Henchy in June, 1972, two issues arose for determination; first, as to whether a trade dispute had existed on the 31st January, 1968, when these proceedings were instituted and, secondly, whether that trade dispute was still in existence when the action came to trial before Mr. Justice Henchy. The trial judge held that a trade dispute did exist in January, 1968, but that it did not continue to exist at the date of the trial. Against this latter finding the defendant has appealed.
What is commonly known as “picketing” constitutes an offence under s. 7 of the Conspiracy and Protection of Property Act, 1875. In addition to being a criminal offence, it is a tort which gives the person against whom it is directed a civil remedy to have it restrained, and to recover such damages as he may be able to prove. On the 21st December, 1906, the Trade Disputes Act, 1906, was passed, and s. 7 of the Act of 1875 was thereby modified, but only to the limited extent provided by s. 2 of the Act of 1906. It was thereby made lawful for a person, a trade union, or an employer to indulge in peaceful picketing if, and only if, a trade dispute existed and then only for limited purposes.
In January, 1968, the defendant was clearly in dispute with his employers in relation to his dismissal, and Mr. Justice Henchy has so found. When the action came to trial in June, 1972, the defendant claimed that this dispute still subsisted and that his picketing was in pursuance of it. The learned judge decided that the trade dispute which had existed in January, 1968, had not continued up to the date of the trial. In my opinion, quite apart from any delay by the defendant in having the case disposed of and getting himself released from his undertaking not to picket, his conduct in accepting employment as a taxi driver for a period of nine months and then with the Mass Radiography Board for a period of three years is quite inconsistent with his regarding the original dispute as being still alive. In my opinion, the conclusion is inevitable that long before June, 1972, the defendant had abandoned his claim to be in dispute with his previous employers. The proposed picketing would not be for the purpose which originally prompted him to picket the premises in January, 1968, but for the purpose of securing employment with the plaintiffshe having elected to leave his employment with the Mass Radiography Board. In my opinion, the decision of Mr. Justice Henchy on the issue of the alleged continuance of the dispute was correct, and this appeal should be dismissed.
BUDD J. :
The defendant was employed as a lorry driver by the plaintiff company from about the year 1960 when the company was known as Esso Petroleum Company (Ireland) Ltd. After some incidents in which the plaintiffs found fault with his work, the defendant’s employment was terminated on the 24th March, 1967. He endeavoured to procure his reinstatement but was unsuccessful. Then, on the 31st January, 1968, the defendant proceeded to picket the plaintiffs’ plant at Centre Park Road, Cork, and later their oil installations at Victoria Quay, Cork, and he continued the picketing until the 1st February, 1968. On the 31st January, 1968, the plaintiffs initiated these present proceedings against the defendant and on the same date Mr. Justice Kenny granted them an interim injunction restraining the defendant from picketing until after the 5th February, 1968, on which date the defendant undertook not to picket the premises pending the hearing of the action and the injunction was not continued.
In January, 1969, the defendant entered an appearance and the plaintiffs delivered a statement of claim on the 27th May, 1969. The defendant allowed over two years to pass without lodging a defence. On the 3rd September, 1971, the defendant served a notice of intention to proceed and the defence was delivered on the 7th October, 1971, and notice of trial was served by the plaintiffs on the 1st February, 1972. The object of the defendant in insisting on the prosecution of the proceedings was to obtain an adverse determination of the plaintiffs’ claim for an injunction so that the defendant would be freed from his undertaking not to picket pending the hearing, and to enable the defendant to resume picketing.
The issue in the case as to whether or not a trade dispute existed at the time of the hearing in the court below is a question of fact. In my view, the onus of proving this is on the defendant as the party alleging that state of affairs. The case made by the plaintiffs is that the trade dispute had petered out before the action was tried by Mr. Justice Henchy and, therefore, one must examine the defendant’s conduct and actions prior to that date.
In the first place it would appear that, although the plenary summons was served on the 1st February, 1968, no appearance was entered on behalf of the defendant until the 2nd January, 1969. On inquiry being made of the defendant’s solicitors as to the situation, they informed the plaintiffs that they required delivery of a statement of claim. It was delivered on the 27th May, 1969. It is a rather striking fact that two years were allowed to elapse before the defendant served a notice of intention to proceed on the 3rd September, 1971, and that the defence was delivered on the 7th October, 1971, which was nearly two and a half years after the delivery of the statement of claim. In the result, the case did not come on for hearing until some three and a half years after its commencement.
The defendant has given no explanation of his delay with regard to the matters of pleading which I have already mentioned. Furthermore, in evidence before Mr. Justice Henchy the defendant stated that in the interval he had worked for nine months as a taxi driver and that from January, 1969, to January, 1972, he had been employed in Cork by the Mass Radiography Board as a driver technician. It would appear that the defendant’s reason for not continuing longer in the employment of the Radiography Board was that he had been informed that he would have to work in Dublin, which he did not wish to do. For my part I would have thought that, if he wished to keep his dispute with the plaintiffs alive, the defendant in the first place would have taken any steps open to him to free himself from the undertaking and, secondly, that he would have left himself free to take up employment with the plaintiffs again if his picketing should result in forcing them to reinstate him or if there should be some immediate settlement of the dispute.
It was suggested during the hearing in this Court that the defendant was given no opportunity to explain his delay, but I have not been able to find from the transcript that it was sought in any examination of the defendant to question him about this matter or that he was in any way prevented from giving any explanation he might choose to give if asked the necessary question. It was also suggested during the hearing that the plaintiffs should have pleaded in their reply that the trade dispute had petered out or come to an end but, in my view, they did so in paragraph 5 of the reply and also by pleading that the trade dispute had ceased to exist by reason of laches.
It seems clear to me that a claim that a trade dispute can continue without any action taken cannot be sustained. Otherwise it would mean that a trade dispute, without such action taken, might become perpetual and the other party to the dispute would be placed in an impossible position. It seems to me there must be some limit. Whether such a dispute has ended and when it ended are matters to be decided upon the conduct of the defendant in all the surrounding circumstances. In my view, the learned trial judge made a perfectly reasonable finding in his conclusion on the evidence as a whole that the trade dispute had ceased to exist at the time of the hearing before him. I would dismiss this appeal.
GRIFFIN J. :
The facts and all the relevant dates have been fully set out in the judgments of the Chief Justice and of Mr. Justice Budd and it is not necessary for me to repeat them. At the trial, Mr. Justice Henchy held that the picketing carried out by the defendant on the 31st January, 1968, and the 1st February, 1968, was done in furtherance of a trade dispute between the defendant and the plaintiffs and was lawful. However, he also held that there was no trade dispute in existence at the time of the trial and ordered that the defendant be perpetually restrained from picketing the plaintiffs’ premises and installations in Cork or any other premises of the plaintiffs. Whether the peaceful picketing that took place on the 31st January, 1968, and the 1st February, 1968, was done in furtherance of a trade dispute is a question of fact. So also is the question whether that trade dispute was still in existence at the time of the trial.
As this was a trial by a judge sitting without a jury, Mr. Costello submitted that this Court was entitled to review the facts found by the trial judge and urged the Court to do so. The law on the right and duty of this Court hearing an appeal from a finding of a judge sitting without a jury is, in my opinion, correctly stated by Viscount Cave L.C. in Mersey Docks and Harbour Boardv. Procter 8 as follows: “The duty of a Court hearing an appeal from the decision of a judge without a jury was clearly defined by Sir Nathaniel Lindley M.R. in Coghlan v.Cumberland 9, and by Lord Halsbury in Montgomerie & Co. v. Wallace-James 10, and is no longer in doubt. The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly.” – see also Quigleyv. Beirne .11
No appeal has been taken against the finding of Mr. Justice Henchy that the peaceful picketing on the 31st January, 1968, and the 1st February, 1968, was carried out in furtherance of a trade dispute. The real issue before this Court therefore is whether the trial judge was entitled to hold on the evidence given at the trial that there was no trade dispute in existence at the time of the trial. The onus of proving that a trade dispute continued to exist at the time of the trial is on the person asserting it; in this case it is the defendant who so asserts. Counsel for the defendant contended that “once a trade dispute always a trade dispute.” If this is a correct statement of the law, it could lead to some strange and unjust results. A workman who had a genuine trade dispute with his employer and had peacefully picketed the employer’s premises in furtherance of it could, when the dispute was not resolved to his satisfaction, emigrate and work abroad for several years, then retire from that employment and return home and resume his picketing of his former employer’s premises. In my opinion, although a trade dispute can be continued for very many years by appropriate action, it does in fact require such appropriate action to ensure its continuance.
In my view, Mr. Justice Henchy was perfectly justified on the facts in holding that the trade dispute which existed when the proceedings were instituted in 1968 no longer existed at the time of the trial. Indeed, I find it difficult to see how he could have found otherwise. The defendant had been employed as a taxi driver for nine months in 1968 and by the Mass Radiography Board in Cork for three years prior to January, 1972. This latter employment ceased only because the defendant was being transferred to Dublin and he did not wish to go there. On these facts alone, the trial judge would have been entitled to hold that the trade dispute had not been kept alive. When, in addition, regard is had to the fact that it took almost a year to enter the appearance and that it took two and a half years from the delivery of the statement of claim to deliver the defence in the action, in a case in which one would expect that the defendant would seek to be relieved of his undertaking at the earliest possible moment, it seems to me that the conduct of the defendant and his inaction in respect of the proceedings were not those of a man who regarded himself as in dispute with his former employers and that the conclusion that he had abandoned his trade dispute with his employers was inescapable. I would dismiss this appeal.